Cherry 2013

Maryland Law Review
Volume 72 | Issue 2 Article 2
1-1-2013
Cyber Commodification
Miriam A. Cherry
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Miriam A. Cherry, Cyber Commodification, 72 Md. L. Rev. 381 (2013)
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Articles
CYBER COMMODIFICATION
MIRIAM A. CHERRY ∗
INTRODUCTION
Last year, the Huffington Post blog found itself involved in a con-
tentious legal dispute with its unpaid bloggers about the commodifi-
1
cation of its content. The Huffington Post features many posts that are
2
straight-ahead news reports; other posts have featured more ideolog-
3
ical content aimed at a liberal audience. Leading up to the 2008
Copyright © 2013 by Miriam A. Cherry.

∗
Professor of Law, Saint Louis University Law School; J.D., 1999, Harvard Law School,
B.A., 1996, Dartmouth College. Many of the ideas presented received a first discussion at
the Engelberg Center for Innovation Law and Policy Roundtable on Platforms and Power,
held in May of 2011 at New York University Law School, for which I would like to thank
the organizers, Katherine Strandberg, Barton Beebe, and Helen Nissenbaum, as well as the
other attendees. In addition, I wish to acknowledge Matthew Bodie, Ryan Calo, Danielle
Citron, Christine Corcos, Erik Daniels, Monica Eppinger, John P. Hunt, Kimberly Krawiec,
David Kullman, Angela Onwuachi-Willig, Karen Petroski, Robert L. Rogers, Peter Salsich,
Anders Walker, and Jarrod Wong for their helpful insights and encouragement. Further, I
wish to express my deep appreciation to Winifred Poster, who provided valuable commen-
tary to the Article when it was in its formative stages. Thanks to Gregory Goodwin, Kristen
Henke, Willian Kellner, Ameya Patankar, and Erin Petersen for their able research assis-
tance, and to the editors of the Maryland Law Review for their hard work.
1. Paul Farhi, Unpaid Bloggers Plan to Sue HuffPo, AOL, WASH. POST (Apr. 12, 2011,
11:38 AM), http://www.washingtonpost.com/blogs/the-buzz/post/unpaid-bloggers-plan-
to-sue-huffpo-aol/2011/04/12/AFFSlZQD_blog.html.
2. See, e.g., Daniel Bukszpan, The Most Expensive NFL Tickets of the Season: CNBC,
HUFFINGTON POST (Sept. 10, 2012, 11:57 AM), http://www.huffingtonpost.com/2012/09
/09/most-expensive-nfl-tickets_n_1865589.html?utm_hp_ref=business (noting the top
NFL tickets in terms of price).
3. See Tim Rutten, AOL? HuffPo. The Loser? Journalism, L.A. TIMES, Feb. 9, 2011, at 15,
available at http://articles.latimes.com/2011/feb/09/opinion/la-oe-rutten-column-huff
381
382 MARYLAND LAW REVIEW [Vol. 72:381
election, many Huffington Post bloggers wrote accounts critical of then-

President George W. Bush, specifically his administration’s treatment
of the Guantanamo Bay prisoners, while others wrote to assist fellow
Democratic voters become more familiar with the primary candi-
4
dates. Regardless of one’s personal political leanings, the website at-
tracted a sophisticated level of writing in its posts: Featured bloggers
included professional journalists and attorneys who contributed their
efforts to the Huffington Post for free, despite normally being paid for
5
their writing. Freshly updated content helped attract an additional
audience to the blog, which grew rapidly, reaching fifteen million hits
6
per weekday.
In March 2011, media giant AOL submitted a $315 million acqui-
7
sition bid for the Huffington Post. The HuffPo website, and the traffic
driven to that site, was valuable to AOL, a company that had been
searching for more content providers and an expanded audience for
8
existing content. Arianna Huffington and her financial backers
ington-aol-20110209 (stating that the Huffington Post tailors its content to its “overwhelm-
ingly liberal audience”).
4. See, e.g., Shayana Kadidal, Guantanamo, Six Years Later, HUFFINGTON POST (Jan. 11,
2008), http://www.huffingtonpost.com/shayana-kadidal/guantanamo-six-years-late_b_810
25.html (criticizing the Bush administration on its operation of Guantanamo Bay). For
the Huffington Post’s current stance on this issue, see Ben Fox, Guantanamo Closure Hopes
Fade as Prison Turns 10, HUFFINGTON POST, (Jan. 10, 2012, 4:21 PM),
http://www.huffingtonpost.com/2012/01/10/guantanamo-closure-anniversary_n_1195
984.html.
5. See Class Action Complaint at ¶¶ 56–61, Tasini v. AOL, Inc., 851 F. Supp. 2d 734
(S.D.N.Y. 2011) (No. 11 Civ. 2472(JGK)), 2011 WL 1366476 (alleging that the Huffington
Post recruited professional journalists and authors to generate high quality content without
compensation).
6. See Nate Silver, The Economics of Blogging and the Huffington Post, N.Y. TIMES (Feb.
12, 2011, 12:28 PM), http://fivethirtyeight.blogs.nytimes.com/2011/02/12/the-
economics-of-blogging-and-the-huffington-post/ (estimating fifteen million page hits per
weekday on HuffPo and analyzing the types of posts and attention the site was typically at-
tracting).
7. Id.; see also Julianne Pepitone, Huffington Post Blogger Sues AOL for $105 Million,
CNN MONEY (Apr. 12, 2011, 2:58 PM), http://money.cnn.com/2011/04/12/technology/
huffington_post_blogger_lawsuit/index.htm (noting that AOL had acquired Huffington
Post for $315 million).
8. See Jeremy W. Peters & Verne G. Kopytoff, Betting on News, AOL is Acquiring Huff-
ington Post, N.Y. TIMES, Feb. 7, 2011, at A1 (describing AOL’s reasons for purchasing the
Huffington Post, including its desire for more news content and a broader audience).
2013] CYBER COMMODIFICATION 383
9
stood to make a handsome profit from the acquisition. The blog-
gers, on the other hand, who had built the blog’s readership by dint
10
of their hard work, were to receive nothing. Frustrated, Jonathan
11
Tasini, a journalist and labor activist, along with other unpaid blog-
12
gers, filed a lawsuit challenging the terms of the deal. The bloggers
claimed that their hard work had built the blog’s value, entitling them
to a share of the profits by virtue of a contract claim or a claim for un-
13
just enrichment and restitution.
The heart of the Huffington Post bloggers’ claims seemed to rest,
as many contract-related disputes do, in the differing expectations
that the parties brought with them to the deal. From the bloggers’
perspective, they performed work without payment because they be-
lieved that they were contributing to a political website that advanced
14
the causes in which they believed. Retroactively, the bloggers
learned that the site’s founders were to profit from the blog, and they
15
therefore felt exploited. The Huffington Post contended that the
bloggers undertook their writing with no expectation of compensa-
16
tion. Further, they claimed that the bloggers did receive a substan-
9. See id. (“The sale means a huge payout for Huffington Post investors and holders of
its stock and options . . . .”).
10. See Class Action Complaint, supra note 5, at ¶ 3 (alleging that none of the profits
from AOL’s purchase of the Huffington Post were shared with its bloggers); see also Rutten,
supra note 6 (“To grasp its business model . . . you need to picture a galley rowed by slaves
and commanded by pirates.”).
11. Jonathan Tasini was previously the successful lead plaintiff in a lawsuit challenging
the rights of newspapers to license the work of freelance writers to electronic databases
without additional compensation. N.Y. Times Co. v. Tasini, 533 U.S. 483, 506 (2001).
12. Class Action Complaint, supra note 5, at ¶ 3.
13. Id. at ¶ 2. The claim would be that, although a formal contract was lacking, the
organizers of the Huffington Post were unjustly enriched and a restitution theory would be
applied to compensate the bloggers. Ashby Jones, Do Huffington Post Bloggers Deserve to Get
Paid?, WALL ST. J. LAW BLOG (Apr. 12, 2011, 4:01 PM),
http://blogs.wsj.com/digits/2011/04/12/should-huffington-post-bloggers-get-paid/.
14. See infra Part IV.
15. The unpaid bloggers posted on the Twitter account #huffpuff, claiming that Huff-
Po “‘built a blog-empire on the backs of thousands of citizen journalists.’” Silver, supra
note 6. Ironically, liberal ideology generally tends to support organized labor and work-
ers’ rights.
16. Memorandum of Law in Support of Defendants’ Rule 12(b)(6) Motion to Dismiss
the First Amended Complaint at 1, Tasini v. AOL, Inc., 851 F. Supp. 2d 734 (S.D.N.Y 2011)
(No. 11 Civ. 2472(JGK)), 2011 WL 8198300.
tial benefit, as they used the HuffPo “to connect and help their work
be seen by as many people as possible. It’s the same reason people go
17
on TV shows: to promote their views and ideas.” In other words, ac-
cording to the HuffPo, the blog provided unknown writers with an
important boon: a platform for expression and free publicity to a
18
growing audience. On March 30, 2012, the district court sided with
19
the HuffPo blog and dismissed the bloggers’ complaint. The deci-
sion was later affirmed on appeal by the United States Court of Ap-
20
peals for the Second Circuit.
While the Huffington Post dispute is a new context for examining
the monetization of Internet websites and online activities, the fact is
that this question—whether a website is or should be commercial-
ized—is becoming an increasingly common and vexing one. For the
past decade, technology has fundamentally shaped and restructured
21
the ways in which many markets function. Indeed, certain goods
and services, which in the past were off-limits because they would have
been impracticable to sell or difficult to buy, have been brought to
17. Jeremy W. Peters, Huffington Post Is Target of Suit on Behalf of Bloggers, N.Y. TIMES
(Apr. 12, 2011, 12:49 PM), http://mediadecoder.blogs.nytimes.com/2011/04/12
/huffington-post-is-target-of-suit-on-behalf-of-bloggers/.
18. Id. For academic commentary discussing the rise of amateurism and peer produc-
tion of blogs, see John Quiggen & Dan Hunter, Money Ruins Everything, 30 HASTINGS
COMM. & ENT. L.J. 203, 220 (2008).
19. Tasini v. AOL, Inc., 851 F. Supp. 2d 734, 745 (S.D.N.Y. 2012), aff’d, No. 12–1428–
CV, 2012 WL 6176559, at *1 (2d Cir. Dec. 12, 2012).
20. Tasini v. AOL, Inc., No. 12–1428–CV, 2012 WL 6176559, at *1 (2d Cir. Dec. 12,
2012).
21. For example, computerized trades have replaced the loud, frantic atmosphere of
the “trading pit” where stockbrokers traditionally executed buy-sell orders. See Graham
Bowley, The New Speed of Money, Reshaping Markets, N.Y. TIMES, Jan. 1, 2011, at BU1 (noting
that most stock trading in the United States is conducted via computer); Michael J. De La
Merced & Jack Ewing, A German Bid to Take over the Big Board, N.Y. TIMES, Feb. 10, 2011, at
A1 (“[I]ncreasingly trades are being executed by computers far from Wall Street.”); see also
Margaret Jane Radin, Property Evolving in Cyberspace, 5 J.L. & COM. 509, 509 (1996) (noting,
presciently, that “the way we think about property is changing in light of the technological
and social realities of the global flow of digital information over linked computer net-
works”); M. Ryan Calo, People Can Be So Fake: A New Dimension to Privacy and Technology
Scholarship, 114 PENN ST. L. REV. 809, 850–52 (2010) (describing psychological literature
on how humans are interacting with robotic devices, such as global mapping programs
and Roomba housekeepers).
22 23
market by intermediaries such as eBay, Amazon.com, and
24 25
craigslist, as these platforms have either minimized or removed var-
26
ious transaction costs. Further, items that have traditionally been
27
seen as non-monetizable, such as predictions about future events,
22. EBAY, http://www.ebay.com (last visited Sept. 11, 2012). As one of the first online
auction websites, eBay has certainly had its share of commodification controversies. In
1999, the attempted auction of a human kidney on eBay created a furor and spurred fur-
ther debate surrounding markets in human organs. Amy Harmon, Auction for a Kidney
Pops up on eBay’s Site, N.Y. TIMES, Sept. 3, 1999, at A13. Citing federal law criminalizing or-
gan sales, eBay removed the auction but not before bids had reached several million dol-
lars. See id. (noting that the National Organ Transplant Act, 42 U.S.C. § 274e (2006), crim-
inalizes the sale of human organs). Since that time, eBay has attracted more than its share
of nontraditional sale items, including “holy toast,” a grilled cheese sandwich with a grill
pattern that reflected the likeness of the Virgin Mary, occult items, and even people put-
ting themselves up for sale. $28,000 Bid Wins Sandwich, CHI. TRIB., Nov. 23, 2004, at C18;
Mary Ann Georgantopoulos, Student’s eBay Stint Pays the Bills, Makes a Friend, BOS. GLOBE,
Aug. 12, 2007, at 4 (describing a vacationing student who sold himself—or at least one
week of his labor—to pay for an airline ticket back to the United States). Which goods
and services are considered legitimately for sale, which are jokes, and which are banned is
a seemingly delicate and ever-shifting line implicating issues of public policy, morality, and
the doctrines of common law contracts. As new markets form and transaction costs con-
tinue to fall, the boundaries between market and non-market activity are prone to in-
creased slippage. So while it is legally acceptable for one to sell the space on one’s fore-
head to sport a tattoo with the name of a corporation, the literal sale of one’s soul is
forbidden on Internet auction sites. Compare, Andrew Adam Newman, The Body as Bill-
board: Your Ad Here, N.Y. TIMES, Feb. 17, 2009, at B3 (noting the legal business of tattoo
advertising), with Soul Seller, CHI. TRIB., June 14, 2004, at 49 (describing auction for a soul
that slipped past eBay’s rules; the price of a soul in that auction was a mere $400).
23. AMAZON, http://www.amazon.com (last visited Sept. 11, 2012).
24. CRAIGSLIST, http://www.craigslist.org (last visited Sept. 11, 2012).
25. I use this term throughout the article even though it has many meanings, includ-
ing a technical platform, a platform from which to speak, or, in the words of one commen-
tator, platforms as the “curators of public discourse.” See Tarleton Gillespie, The Politics of
‘Platforms’, NEW MEDIA & SOC’Y (2010) (discussing the use of the term “platform”); Niva
Elkin-Koren, User-Generated Platforms, in WORKING WITHIN THE BOUNDARIES OF
INTELLECTUAL PROPERTY (Rochelle Dreyfuss et al. eds., 2010), available at http://ssrn.com
/abstract=1648465 (discussing social media platforms).
26. See infra Part II.B.
27. See generally MICHAEL ABRAMOWICZ, PREDICTOCRACY (Yale Univ. Press 2008) (de-
scribing the benefits of prediction markets). For the author’s discussion prediction mar-
kets, see generally Miriam A. Cherry & Robert L. Rogers, Prediction Markets and the First
28
tasks performed in minutes or even seconds of leisure time, or the
29
friendship and connections that comprise social capital, are all now
30
rapidly in the process of being valued, monetized, globalized, and
marketed online. At times these shifting boundaries have resulted in
31
legal disputes.
When it comes to commodification on the Internet, it is a wild,
wild World Wide Web. Researching encyclopedia articles for Wikipe-
dia is an unpaid labor of love, but connecting to your friends on Fa-
32
cebook is a $100 billion enterprise. Newspaper classified advertise-
ments are definitely commercial, but their equivalent on craigslist was
mostly non-commercial—until the Delaware Chancery Court stepped
33
in. Selling your organs is prohibited in the United States, whereas
34
selling hair promises to rescue third-world citizens from poverty.
Selling sex is illegal as prostitution, but selling adultery online is a hot
35
new business model. And a small company offering a free service to
academics has quietly become the dominant method for disseminat-
ing academic legal research, beating massive commercial data provid-
36
ers without anyone initially noticing. This Article will explore these
and other recent developments to explore the challenging legal issues
raised by Internet commodification of what is often unpaid labor.
The new technology that has given rise to these unconventional
markets raises provocative legal and theoretical questions. Funda-
Amendment, 2008 U. ILL. L. REV. 833 (2008) [hereinafter Cherry & Rogers, Prediction Mar-
kets] (discussing the legal issues surrounding prediction markets); Miriam A. Cherry &
Robert L. Rogers, Tiresias and the Justices: Using Information Markets to Predict Supreme Court
Decisions, 100 NW. U. L. REV. 1141 (2006) (discussing the application of prediction markets
to Supreme Court decisions); Miriam A. Cherry & Robert L. Rogers, Markets for Markets:
Origins and Subjects of Information Markets, 58 RUTGERS L. REV. 339 (2006) (analyzing the
history and evolution of prediction markets).
28. Randall Stross, When the Assembly Line Moves Online, N.Y. TIMES, Oct. 31, 2010, at 5.
29. See infra Part III.B.
30. See, e.g., Miriam A. Cherry, The Global Dimensions of Virtual Work, 54 ST. LOUIS U.
L.J. 471, 472–73 (2010) [hereinafter Cherry, Virtual Work] (noting the increasing trend
toward globalization in online work).
32. See infra Part III.B.
33. See infra Part III.A.
34. See infra Part I.
35. See infra Part II.A.2.
36. See infra Part IV.B.
mental questions remain as productive collaborative uses of the In-

ternet continue to develop: How will the lines between monetized and
free goods and services be drawn in cyberspace? How will technology
be used to shape or change existing norms about what is and what is
not commodified? As new technologies are created, disputes arise
37
about how and when marketization could or should occur. On one
hand, money can attract participation in ways that purely fun activities
might not be able to, and it can provide important incentives for en-
38
gaging users. On the other hand, the Internet has as part of its
39
ethos an “open access” ethic that has led to many useful free innova-
tions, with examples that are as wide-ranging as the development of
40
Linux to free mapping programs and Wikipedia.
It is often difficult to analyze change when it is unfolding and
one is living through it. Much of our current body of contract law
doctrine traces its origins to the rise of mass production and expan-
41
sion of factory labor 300 years ago. The changes in information
technology and commerce that are now taking place are equally as
complex and dramatic as the innovations during the original Indus-
42
trial Revolution. Accompanying advances in communication and in-
formation technology is a dramatic expansion of online trade and

38. See infra Part II.
39. See, e.g., GOOGLE MAPS, http://www.googlemaps.com (last visited Sept. 11, 2012);
MAPQUEST, http://www.mapquest.com (last visited Sept. 11, 2012).
40. WIKIPEDIA, http://www.wikipedia.org (last visited Sept. 11, 2012).
41. For example, the doctrine on the foreseeability of contract damages comes to us
from the case Hadley v. Baxendale (1854) 156 Eng. Rep. 145 (Exch.), 9 Ex. 341. Richard
Danzig, Hadley v. Baxendale: A Study in the Industrialization of the Law, 4 J. LEG. STUD. 249,
253 (1975). As noted by Professor Danzig, the case was part of a sea change in commerce
that came along with the advent of mass production. Id. at 250–51.
42. One contemporary of the English Industrial Revolution wrote the following in de-
scribing the changes and the effect that had on the law of commerce:
What our Law was then [before the Industrial Revolution], it is not now; and
what is now, can best be understood by seeing what it was, then. It is like the
comparison between England under former, and present, systems of transit, for
persons, property, and intelligence: between the days of lumbering waggons,
stage coaches, and a creeping post—and of swift, luxurious Railroads, and light-
ening Telegraphs. All is altered: material, inducing corresponding social and
moral changes.
SAMUEL WARREN, A POPULAR AND PRACTICAL INTRODUCTION TO LAW STUDIES AND TO
EVERY DEPARTMENT OF THE LEGAL PROFESSION 12 (3d ed. 1863).
43
commerce. As such, it is important to think of contract law’s place
44
in this new world of networked trade and commerce. This Article
will identify current developments and analyze what types of legal is-
sues these developments may pose for the future. Some well-
established doctrines of contract law may help in resolving disputes in
45
this diverse wild-web world.
This Article will make a unique contribution to the theoretical
46
work surrounding commodification. In The Wealth of Networks, Pro-
fessor Yochai Benkler extols the virtues of free collaboration in cyber-
space, via what he describes as open-source or “commons-based peer
47
production.” Professor Margaret Radin also expresses skepticism
48
about markets in relation to unconventional markets. On a first ex-
amination, choices about commodification seem binary—an on or off
49
switch—and as such they are in fundamental tension. With a deeper
50
examination, however, I believe this is a false dichotomy. Commodi-
fication is more of a continuum, with many portions of the Internet
existing in states of what Professor Radin might term “incomplete
51
commodification.” While Professors Benkler and Radin are skepti-
43. See supra Part II.

44. See infra Part V.A.
45. See infra Part V.A.
46. See infra Part V.B.
47. See, e.g., YOCHAI BENKLER, THE WEALTH OF NETWORKS 9 (2006) (“As collaboration
among far-flung individuals becomes more common, the idea of doing things that require
cooperation with others becomes much more attainable, and the range of projects indi-
viduals can choose as their own therefore qualitatively increases. The very fluidity and low
commitment required of any given cooperative relationship increases the range and diver-
sity of cooperative relations people can enter, and therefore of collaborative projects they
can conceive of as open to them.”); see also Steven A. Hetcher, Hume’s Penguin, or, Yochai
Benkler and the Nature of Peer Production, 11 VAND. J. ENT. & TECH. L. 963, 969–78 (2009)
(discussing, inter alia, Benkler’s theory of peer production).
51. Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1917–20
(1987); see also Margaret Jane Radin & Madhavi Sunder, The Subject and Object of Commodifi-
cation, in RETHINKING COMMODIFICATION 8, 25 n.16 (Martha M. Ertman & Joan C. Williams
eds., 2005) (noting that Radin is “convinced that [her] most useful scholarly contribution
is likely to be having made the word ‘commodification’ speakable in legal academic dis-
course”). Indeed, as early as 2002, Professor Radin, a pioneer of commodification theory
in legal literature, noted that the Internet and other computer technology was helping to
cal of marketization of the Internet, that skepticism is, in my view,

52
mostly unjustified. There is nothing about the Internet that inher-
ently means that it must be free. In fact, it is my contention that con-
tests and disputes arise not because of commodification itself but be-
cause of misunderstandings about the degree of commodification
53
surrounding a particular transaction. With the appropriate qualifi-
cations and limits that will be pointed out throughout the Article,
monetization need not be as problematic as these two scholars seem
54
to assume.
Keeping this thesis in mind, while scholars have provided narrow
telescopic glimpses into isolated components of cyber commodifica-
tion, this piece will aim to catalogue and describe these issues further.
At the outset, I note that cyber commodification is a multivalent con-
cept that does not lend itself to easy analysis or description. The term
cyber commodification as I employ it refers to a number of ideas, in-
cluding creating new markets for goods or services on the Internet
that have not existed before; monetizing items that we would not
normally think of as financial concepts, such as friendship, or two
seconds of someone’s time, or someone’s individual predictions about
the future; creating business models that attempt to harness what
would traditionally be unpaid labor and what commentators have re-
ferred to as “peer production”; or leveraging or arbitraging the differ-
ing values of goods or services based on the absence of geographic
boundaries on the Internet. As this is a complex and new phenome-
non, the rest of this Article will seek to provide a rough exploratory
map of this new terrain.
This Article will proceed in five parts and will use both illustrative
examples and broader theoretical material to map the concept of
cyber commodification more fully. Part I will explain how cyber
commodification is different from earlier forms of commodification
that are more familiar to us. As such, it will seek insights from the
first wave of commodification theory, which grew out of advances in
medical technology and enabled us to think about reproduction, or-
gan sales, and other biologic components associated with the body in
accelerate various types of commodification by lowering transaction costs and bringing

buyers and sellers together in a truly global marketplace. Margaret Jane Radin, Incomplete
Commodification in the Computerized World, in THE COMMODIFICATION OF INFORMATION 3, 4
(Niva Elkin-Koren & Neil Weinstock Netanel eds., 2002).
market terms. From this more historical and theoretical background,

Part II will discuss the forces that have propelled cyber commodifica-
tion. These forces include anonymity, the elimination of geograph-
ical barriers, and the lack of jurisdictional guidelines that apply to the
Internet. While the examples in this Part range all the way from an
online market for adultery to Chinese “goldfarmers” who play video
game characters for a living, what they share is that they explain why
the cyber commodification phenomenon has become ubiquitous.
Part III will discuss the process of cyber commodification, using the
business model of craigslist as an illustrative example, and will exam-
ine prediction markets, which monetize knowledge and information.
Part IV will move on to contests and disputes that have arisen from dif-
fering expectations that parties bring with them into various transac-
tions. Finally Part V will explore the greater implications of cyber
commodification, including its various associated costs and benefits.
I. DIFFERENTIATING CYBER COMMODIFICATION

Scholars have studied and analyzed the commodification of
goods and services with a great deal of attention, focusing on non-
traditional or controversial markets, such as markets in surrogacy or
the sale of organs or body parts. Some of these unconventional cate-
gories push the boundaries of what most in our society would consid-
er off-limits or problematic. In the literature, unconventional markets
55 56
are thus often referred to as taboo trades, “repugnant markets,” or,
57
humorously, “ick-onomics.” While these matters have been at least
partially analyzed by courts and academic commentators, the markets
between monetized and non-monetized transactions are still being
58
clarified. Indeed, it is important to realize that these delineations
59
are often contextually and culturally dependent. For example, pay-
55. Alvin E. Roth, Repugnance as a Constraint on Markets, 21 J. ECON. PERSP. 3, 40 (2007)

(quoting Alan P. Fiske & Philip E. Tetlock, Taboo Trade-Offs: Reactions to Transactions that
Transgress Spheres of Justice, 18 POL. PSYCHOL. 255, 255–97 (1997)) (internal quotation
marks omitted).
56. Id. at 39–42.
57. Josephine Marcotty, Kidney Failure, Part 3: A Revolution: Trading Donors, STAR TRIB.,
Sept. 29, 2009, at 1A.
58. See Roth, supra note 55, at 44–45 (discussing some of the uncertainties surround-
ing monetary and nonmonetary transactions).
59. See id. at 42–44 (describing how transactions can be judged differently in different
contexts and cultures).
ment for organs is forbidden in the United States but is permitted in

60
Iran; markets in fossils are outlawed in many European countries but
61
they thrive in the lightly regulated market of the United States.
So, what can we learn from these examples for our present pur-
poses of exploring cyber commodification? Further, what are the dif-
ferences between these offline commodification concerns and what is
happening now online? Specifically, how have markets responded to
previous technological changes? How did the law play a role in the
creation or inhibition of the markets?
A. Existing Legal Framework for Regulation of New Markets

As a broad overview, U.S. federal and state laws police the border
of marketable goods and services. On the first order are constitution-
62
al provisions, such as the Thirteenth Amendment, and statutes that
criminalize, forbid, or otherwise ban markets in a particular good or
service. These provisions are sometimes dependent on context, and
may shift over time along with the changing morals of the day. In ad-
dition, many statutes set the ground rules for participation in markets
or attempt to protect vulnerable participants, although these statutes
are more about regulation than forbidding particular market activi-
63
ty. Finally, other common law doctrines, such as public policy, con-
sideration, and the concept of inalienability in property law operate
within common law to establish the line between permissible market
64
versus nonmarket activity.
60. Alex Tabarrok, The Meat Market, WALL ST. J., Jan. 8, 2010, at A1; Claire Suddath &
Alex Altman, How Does Kidney-Trafficking Work?, TIME (July 27, 2009), http://www.time.
com/time/health/article/0,8599,1912880,00.html.
61. See Miriam A. Cherry, A Tyrannosaurus-Rex Aptly Named “Sue”: Using a Disputed Dino-
saur to Teach Contract Defenses, 81 N.D. L. REV. 295, 295–97 (2005) (describing lightly regu-
lated fossil markets in the United States).
62. U.S. CONST. amend. XIII (banning the institution of slavery); Mario L. Barnes &
Erwin Chemerinsky, The Once and Future Equal Protection Doctrine?, 43 CONN. L. REV. 1059,
1067 (2011).
63. See Joel Seligman, The Changing Nature of Federal Regulation, 6 WASH. U. J.L. & POL’Y
205, 207–10 (2001) (discussing statutes enacted to create a national system of securities
regulation).
64. See Radin, supra note 51, at 1855–59 (discussing the concept of inalienability).
Constitutional provisions or criminal statutes can put certain ac-

65
tivities off-limits for exchange in a market. Constitutional provisions
can be used to outlaw a market for a good entirely, which was the case
66
with the prohibition of alcohol. Criminal statutes may also be writ-
ten in such a way that make an entire market illegal; or it may be con-
text dependent. For example, many drugs that once were legal, such
67
as cocaine, are now banned. But other banned drugs, specifically
marijuana, are permissible with the presence of particular medical
68
conditions in certain states. Sexual activity, which would otherwise
69
be legal, is criminalized if it involves the exchange of money. And
65. See, e.g., Gary Fields & John R. Emshwiller, Federal Offenses: As Criminal Laws Prolif-
erate, More Ensnared, WALL ST. J., July 23, 2011, at A1 (describing a father and son who were
arrested for digging arrowheads on federal land).
66. U.S. CONST. amend. XVIII (instituting prohibition along with the Volstead Act),
repealed by U.S. CONST. amend. XXI; see also Lloyd C. Anderson, Direct Shipment of Wine, the
Commerce Clause and the Twenty-First Amendment: A Call for Legislative Reform, 37 AKRON L.
REV. 1 (2004) (discussing the impact on the shipment of wine as a result of the Twenty-
First Amendment of the U.S. Constitution); Susan Lorde Martin, Wine Wars—Direct Ship-
ment of Wine: The Twenty-First Amendment, The Commerce Clause, and Consumers’ Rights, 38 AM.
BUS. L. J. 1 (2000) (same).
67. See, e.g., Steven Wisotsky, Exposing the War on Cocaine: The Futility and Destructiveness
of Prohibition, 1983 WIS. L. REV. 1305, 1310–13 (describing the criminalization of cocaine in
the United States).
68. See, e.g., Michael Berkey, Mary Jane’s New Dance: The Medical Marijuana Legal Tango,
9 CARDOZO PUB. L. POL’Y & ETHICS J. 417, 428–31 (2011).
69. Andrew Gilden, Sexual (Re)consideration: Adult Entertainment Contracts and the Problem
of Enforceability, 97 GEO. L.J. 541, 553 (2007). Anti-prostitution laws criminalize the pay-
ment of money for sexual services. This rule, however, is also context-dependent and pro-
duces odd results in its application at times. While payment for sexual services is banned
in prostitution, producers of pornography legally pay performers for their appearance in
sexually explicit films, which include payment for sexual services. See Taylor v. State, 808
P.2d 314 (Ariz. Ct. App. 1990) (introducing this legal distinction). Recently, Professor
SpearIt has argued that the justification for the distinction between prostitution and por-
nography is a flimsy one, since both constitute the commodification of sexual services. As
such, the criminalization of prostitution treats those in like situations unequally, in fact
criminalizing the activity for those of lower socio-economic class. SpearIt, Assistant Profes-
sor of Law, Saint Louis University School of Law, Presentation at the Saint Louis University
School of Law: Vice-versa: Reframing, Reforming, Pornography Through Prostitution Law
(July 20, 2011).
federal anti-gambling laws have recently been strengthened as a reac-

70
tion to the growth of Internet gambling.
In other instances, state or federal statutes do not prevent a mar-
ket from existing or an activity from taking place, but instead they
regulate who may participate in the market or otherwise prescribe
71
rules to which market participants must adhere. At times, the regu-
72
lation largely replicates the role of custom. In other instances, regu-
lations exist for advancing consumer or investor protection. Exam-
73
ples of such statutes include the Magnuson-Moss Act, which governs
the form and structure of warranties provided for consumer goods, or
the rules regarding accredited investors under the Securities and Ex-
74
change Act.
Even when there is no applicable statute explicitly criminalizing
or regulating a market, the common law doctrines of consideration
and public policy may play a role in market regulation. The touch-
stone of contract law is the bargained-for-exchange, the reciprocal in-
75
ducement of consideration as described by Oliver Wendell Holmes.
Long the bane of first-year law students, the doctrine is littered with
76 77
moral commitments and promises to make charitable donations.
70. Cherry & Rogers, Prediction Markets, supra note 27, at 834–35.
71. See, e.g., Lawrence A. Cunningham, The Sarbanes-Oxley Yawn: Heavy Rhetoric, Light
Reform (And It Just Might Work), 35 CONN. L. REV. 915, 919–20 (2003) (listing all of the
groups subject to regulation by the Sarbanes-Oxley Act).
72. Id. at 969–70. Indeed, one commentator has noted that certain provisions of the
Sarbanes-Oxley Act inscribed into law the “best practices” that existed at the time. Id. at
918.
73. Magnuson-Moss Warranty—FTC Improvement Act, Pub. L. No. 93-637, § 106(b),
88 Stat. 2183, 2188–89 (1974) (codified as amended at 15 U.S.C. § 2306 (2006)).
74. Securities and Exchange Act, 15 U.S.C. § 77c (2006); see also In re Integrated Res.
Real Estate Ltd. P’ships Sec. Litig., 815 F. Supp. 620, 628 (S.D.N.Y. 1993) (noting that the
purpose of the Securities and Exchange Act in exempting those who qualify as accredited
investors is to facilitate specially designed offerings while also protecting against the dan-
ger posed by the lack of SEC scrutiny of offer and sale).
75. OLIVER WENDELL HOLMES, THE COMMON LAW 230 (Mark DeWolfe Howe ed.,
Belknap Press of Harvard Univ. Press 1963) (1881).
76. See Hamer v. Sidway, 27 N.E. 256, 256 (N.Y. 1891) (involving a nephew’s promise
to refrain from vices).
77. See Johnson v. Otterbein Univ., 41 Ohio St. 527, 530 (Ohio 1885) (analyzing con-
sideration in the context of a charitable gift).
78
While not often litigated, the doctrine of consideration performs an
important policing function in terms of decisions about what kinds of
trades will be enforceable and thus legitimately part of a market
economy, and what trades are unenforceable. Public policy is anoth-
79
er ill-defined doctrine but it too has formed the basis for striking
80
down particular private bargains. From this broad legal overview, I
turn now to a literature review of commodification theory.
B. Scholarly Analysis of Commodification

In the last two decades, legal scholarship has tried to theorize
coherent doctrinal approaches to the regulation of markets in human
81 82 83
tissues and organs, sex, surrogate pregnancy, and even the online
84
sale of virginity. Over thirty years ago, Elisabeth M. Landes and
Richard Posner sparked widespread controversy when they began
85
writing about the creation of markets for child adoption. Proposals
78. Among practitioners, the doctrine of consideration would generally be considered

a “deadletter” since consideration is present in almost all commercial deals with which a
transactional attorney would have to deal.
79. Shaheen v. Knight, 11 Pa. D. & C.2d 41 (Pa. C.P. 1957).
80. Matter of Baby M, 537 A.2d 1227, 1246–50 (N.J. 1988); RESTATEMENT (SECOND)
OF CONTRACTS §§ 178–79 (1981).
81. See, e.g., Michele Goodwin, Empires of the Flesh: Tissue and Organ Taboos, 60 ALA. L.
REV. 1219, 1221–22 (2009) (arguing for compensation to family members to increase or-
gan supply rather than modifying default rules of donation); Lisa Milot, What are We—
Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials, 67
WASH. & LEE L. REV. 1053 (2010) (proposing tax reforms to address various types of trans-
actions in body materials). In her work The Immortal Life of Henrietta Lacks, author Rebecca
Skloot invites the reader to contemplate some of the questions involved with the commer-
cialization of human tissues. See REBECCA SKLOOT, THE IMMORTAL LIFE OF HENRIETTA
LACKS 315–28 (2010).
82. MARGARET RADIN, CONTESTED COMMODITIES 132 (1996).
83. See, e.g., Carol Sanger, Developing Markets in Baby-Making: In the Matter of Baby M,
30 HARV. J.L. & GENDER 67 (2007) (analyzing how the market for surrogacy developed).
84. See Kimberly D. Krawiec, A Woman’s Worth, 88 N.C. L. REV. 1739, 1740 (2010) (re-
counting the story of a 2008 virginity auction at the Moonlite Bunny Ranch in Nevada).
85. See, e.g., Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Short-
age, 7 J. LEGAL STUD. 323 (1978) (analyzing the nonmarket regulation of child adoptions);
RICHARD A. POSNER, SEX AND REASON 409–17 (1992) (same). The secondary literature
that has developed in response to this provocative argument has been extensive. See gener-
surrounding markets for human organs have also sparked serious de-
86
bate.
Feminist theorists have been at the forefront of this commodifi-
cation discussion, perhaps because some of these markets have gen-
der implications, concern the body, or concern women’s traditional
roles, which were historically outside and apart from paid labor mar-
87
kets. Many of these theorists were concerned with the dignitary as-
pects of these trades and argued that women’s bodies and reproduc-
tive capacities should not be the subject of trade or market pressures.
Other feminists were concerned about the exploitation of poor wom-
en by the wealthy, sometimes based on racial lines or the develop-
ment status of the countries in which women lived. Some were con-
cerned that the monetization of reproductive capacity could only lead
to further exploitation.
Although there are a number of conflicting discussions and as-
sumptions surrounding the development of commodification of the
body, opponents of commodification in these areas voice arguments
that touch on two general areas of concern. First, some are con-
cerned that markets can be coercive and play on the desperation that
88
arises from abject poverty and economic inequality. Second, oppo-
nents argue that commodification will corrupt basic human values,
meaning that “certain moral and civic goods are diminished or cor-
89
rupted if bought and sold for money.” In other words, particular
markets might impair the value of human life and, perhaps, dignity.
While the first argument looks to the ideal of consent, the dignity ar-
gument examines the type of goods offered and questions whether
ally Kimberly D. Krawiec, Altruism and Intermediation in the Market for Babies, 66 WASH. & LEE
L. REV. 203 (2009) (collecting sources).
86. See Roth, supra note 55, at 45–50 (discussing issues surrounding the compensation
of organ donors); see also Emily C. Lee, Trading Kidneys for Prison Time: When Two Contradic-
tory Legal Traditions Intersect, Which One has the Right-of-Way?, 43 U.S.F. L. REV. 507, 508 &
n.10 (2009) (describing a proposed bill in South Carolina that would have provided good
time credit for prisoners who became kidney donors (citing S.B. 480, 117th Gen. Assemb.,
Reg. Sess. (S.C. 2007))).
87. See generally, RETHINKING COMMODIFICATION (Martha M. Ertman & Joan C. Wil-
liams eds., 2005) (addressing commodification in a feminist context).
88. Michael J. Sandel, What Money Can’t Buy, The Moral Limits of Markets, in
RETHINKING COMMODIFICATION, supra note 87, at 122.
89. Id.
the purchase and sale of those goods will produce good results for so-
90
ciety overall.
91
Other feminist theorists, including Professors Martha Ertman
92
and Katherine Silbaugh, have argued in favor of commodification
more generally, proposing that familial relations would be more equi-
table if they were to be viewed in monetized terms. Indeed, Professor
Kimberly Krawiec has advocated for the monetization of certain of
these taboo trades, arguing that legalization and monetization of the
sexual economy could lead to women’s empowerment and more full
93
participation in the market economy.
While these various arguments in favor or against commodifica-
tion of the body resound in arguments based on either equality or au-
tonomy, Professor Joan Williams notes that perhaps this is a false di-
94
chotomy. Rather than a fully market transaction or a wholly non-
commodified one, Williams suggests that all transactions fall on some
95
part of a continuum, which she terms “Differentiated Ties.” Some
amount of commodification of our private lives is inevitable, accord-
ing to Williams, and rather than focus on judging whether this is ap-
propriate or not, she asks several key questions. Williams exhorts us
to consider whether the end result of the commodification is liberat-
ing, who controls the process of marketing and receives the proceeds,
96
and whether the commodification advances or harms social ties.
While “Differentiated Ties” is an awkward terminology that does not
seem to capture fully Williams’s concept, the questions she poses are
important, and I return to these insights in the last portion of the Ar-
ticle.
How does the further development of Internet technology im-
pact some of these unconventional markets? What is marketable has
always been contextually and culturally dependent, and has been sub-
90. Id. at 124.

91. Martha Ertman, Marriage as a Trade: Bridging the Private/Private Distinction, 36 HARV.
C.R.-C.L. L. REV. 79 (2001) (discussing how business models are similar to cohabitation,
marriage, and polyamory to justify importing elements of business law to improve domes-
tic relations law).
92. Katherine Silbaugh, Marriage Contracts and the Family Economy, 93 NW. U. L. REV. 65
(1998) (discussing the selective enforcement of premarital agreements).
93. Krawiec, supra note 84, at 1768–69.
94. Joan C. Williams & Viviana A. Zelizer, To Commodify or Not to Commodify That Is Not
the Question, in RETHINKING COMMODIFICATION, supra note 87, at 362, 368.
95. Id. at 368–69.
96. Id. at 375–77.
ject to change over time, apart from any changes in the technological
mechanisms for market exchange. But particular aspects of this new
technology have their own dynamic that seems to encourage com-
modification. Would even Landes and Posner have predicted an
97
online market for human hair?
In dealing with sales that concern the body, the Internet reduces
transaction costs. These reduced transaction costs can take the form
of an intermediary website acting as platform. The legitimacy and ac-
ceptability that such an intermediary conveys may encourage particu-
lar types of transactions to become commodified, and perhaps seem
more acceptable. To ask the converse question, how does the theory
surrounding the first generation of commodification analyses apply to
the questions of Internet commodification? Let us turn to some ex-
amples that illustrate the forces pushing toward cyber commodifica-
tion. I return to the theoretical matters when discussing the implica-
tions of cyber commodification in the last portion of the Article.
II. FORCES PROPELLING CYBER COMMODIFICATION

Several exogenous forces have made cyber commodification in-
creasingly prevalent. These forces are directly related to several dis-
tinctive traits of the very Internet itself—the ability for market partici-
pants to maintain anonymity, the reduction in transaction costs, the
increasing irrelevance of geography and even national borders, and
the lack of clear jurisdictional boundaries. These forces can best be
described through accompanying illustrative examples. For anonymi-
ty, this discussion takes the form of an online market for adultery and
child naming. For transaction costs and the decreasing relevance of
geography, I discuss virtual work and a new method of financing start-
up businesses known as crowdfunding.
97. On BuyandSellHair.com, sellers can create listings for their hair, including color
and length. See Listings for Hair for Sale, BUYANDSELLHAIR.COM, http://buyandsellhair.com
/ad-category/hair-for-sale/ (last visited Mar. 2, 2012). While in developed countries this
may not be big business, in developing countries the sale of hair can forestall abject pov-
erty. For example, in Eastern Europe, some children sell their hair for $3.20 to buy food
and the hair is then sold in the United Kingdom and the United States for thousands of
dollars. See Eddie Fitzmaurice, Children Sell Their Hair for $3, SUN-HERALD, Feb. 22, 2004.
On the other end of the spectrum, many choose to make donations of their hair, through
organizations such as Locks of Love, to those who need it due to various illnesses or chem-
otherapy. Mission & Vision, LOCKS OF LOVE, http://www.locksoflove.org/mission.html
(last visited Mar. 2, 2012). Note that wigs are not covered by most health insurance plans,
as they are considered cosmetic.
A. Anonymity
Anonymity encourages the growth of cyber commodification.
According to a recent article, “[a]nonymity and pseudonymity are in-
trinsic to, and inseparable from, cyberspace because a computer
serves as the medium through which interaction is facilitated. . . .
[T]he identity of each individual is removed either completely or in
98
part.” The concepts of anonymity and deindividuation have been
used as frameworks to analyze the proliferation of various types of
99 100
conduct in cyberspace including defamation, software piracy,
101 102
gambling, and harassment and cyberbullying.
Numerous studies indicate that people behave differently when
103
they believe their identity is anonymous. The role anonymity plays
in a person’s decisionmaking, however, is subject to debate. One
98. Sameer Hinduja, Deindividuation and Internet Software Piracy, 11 CYBERPSYCHOL. &
BEHAV. 391, 392 (2008).
99. Diane Rowland, Griping, Bitching and Speaking Your Mind: Defamation and Free Expres-
sion on the Internet, 110 PENN ST. L. REV. 519, 530–32 (2006).
100. Hinduja, supra note 98, at 392.
101. Mark Griffiths et al., Internet Gambling: An Overview of Psychosocial Impacts, 10 UNLV
GAMING RES. & REV. J. 27, 30 (2006).
102. Warren Chik, Harassment Through the Digital Medium: A Cross-Jurisdictional Compara-
tive Analysis on the Law on Cyberstalking, 3 J. INT’L COM. L. & TECH. 13, 13–14 (2008); Dan-
ielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61, 63–64 (2009); cf. Frank Pasquale,
Beyond Innovation and Competition: The Need for Qualified Transparency in Internet Intermediar-
ies, 104 NW. U. L. REV. 105, 113 (2010) (describing ways in which negative terms can be
searched).
103. See, e.g., Katherine S. Williams, On-Line Anonymity, Deindividuation and Freedom of
Expression and Privacy, 110 PENN ST. L. REV. 687, 691 (2006) [hereinafter Williams, On-Line
Anonymity] (citing GUSTAVE LE BON, THE CROWD: A STUDY OF THE POPULAR MIND (Trans-
action Publishers 1995) (1895)) (describing Le Bon’s theory about the actions of people
in crowds as an individual going on a “moral or ethical holiday” when “he or she is part of
a larger and different whole”); M.E. Kabay, Dir. Of Educ., Int’l Computer Sec. Ass’n,
Presentation at the Annual Conference of the European Institute for Computer Anti-Virus
Research: Anonymity and Pseudonymity in Cyberspace: Deindividuation, Incivility and
Lawlessness Versus Freedom and Privacy (Mar. 16, 1998), http://www.mekabay.com/
overviews/anonpseudo.pdf (citing Phillip G. Zimbardo, The Human Choice: Individuation,
Reason and Order Versus Deindividuation, Impulse, and Chaos, in NEBRASKA SYMPOSIUM ON
MOTIVATION (W.J. Arnold & D. Levine, eds., University of Nebraska Press (Lincoln) 1969)
(noting Zimbardo’s suggestion that anonymity is a contributing factor to antisocial behav-
ior).
104
predominant theory within the psychological literature is deindi-
viduation, “or the state of alienation, reduced inhibition and lack of
self-awareness, which occurs when a personal sense of identity is over-
105
whelmed by that of the group.” Early research focused on an indi-
106
vidual losing self-awareness due to participation in a large group.
Even absent group membership, however, anonymity may be a con-
tributing factor to deindividuation because anonymity results in a lack
107
of self-awareness. This resulting lack of self-awareness can lead to
108
disinhibited or anti-normative behavior. For example, from the rel-
109
ative anonymity of a car, a driver is more likely to drive aggressively,
a participant in an experiment is more likely to deliver a higher volt-
110
age of electric shock to his co-participant if his face is concealed,
and anonymous students are more likely to write cruel comments
111
about instructors in their teaching evaluations.
Evidence supporting a causal link between anonymity and certain
behavior on the Internet is lacking, but several otherwise important
104. Social Identity Theory of Deindividuation is particularly relevant in the Internet

context. The theory divides the self into two subgroups: (1) personal—the qualities that
make an individual different from others; and (2) social—the groups the individual be-
longs to and the identity of that person within the groups. Williams, On-Line Anonymity,
supra note 103, at 692–93. Deindividuation results when an individual abandons the per-
sonal identity for the social identity and the norms and frames of reference from different
groups. Id. While anonymity may not cause antinormative behavior, it can facilitate acting
on impulses or lowering inhibitions, which allow a person to behave in a way she would
not if she was not anonymous. John Suler, The Online Disinhibition Effect, 7 CYBERPSYCHOL.
& BEHAV. 321, 322 (2004). Most likely, anonymity is simply the best option for someone
predisposed to antinormative behavior, because it is less likely that he or she will be
caught. Katherine S. Williams, Using Tittle’s Control Balance Theory to Understand Computer
Crime and Deviance, 22 INT’L REV. OF L. COMPUTERS & TECH. 145, 146 (2008).
105. Rowland, supra note 99, at 531.
106. Id.
107. See Edward Diener, Deindividuation: Causes and Consequences, 5 SOCIAL BEHAV. &
PERSONALITY 143, 146 (1977) (noting that several studies have indirectly suggested that
anonymity “sometimes produces an internal deindividuated state”).
108. Id. at 149.
109. Williams, On-Line Anonymity, supra note 103, at 692 & nn.16, 18 (citing P. Ellison,
Anonymity and Aggressive Driving Behaviour: A Field Study, 10 J. SOC. BEHAV. & PERSONALITY
256 (1995)).
110. Id. (citing Zimbardo, supra note 103, at 237).
111. Mary W. Lindahl & Michael L. Unger, Cruelty in Student Teaching Evaluations, 58
COLLEGE TEACHING 71, 73 (2010).
observations regarding anonymity and Internet behavior exist. For

instance, anonymity is rationally chosen by people who do not want to
112
be held accountable for their decision-making. Anonymity allows
individuals to engage in a behavior without the fear of stigma associ-
113
ated with that behavior. Further, individuals may act online without
114
receiving disapproval or judgment. Most importantly, computer-
mediated communication brings individuals into online groups where
they may potentially act on the norms espoused by the group, thereby
115
losing their sense of self-awareness. For the sake of balance, it is al-
so important to point out the positive aspects of anonymity: People
living under oppressive political regimes may seek out information
from the rest of the world and anonymity can allow for critique of the
government without fear of repercussions. Anonymity can allow for
more personal freedom—for better or worse.
Currently, the most significant commentary about anonymity, de-
individuation, and behavior on the Internet is in the context of free
116
speech and defamation. Commentary has focused on harassment
117
and its proliferation due to the anonymity of cyberbullies. The In-
ternet and other technological advances allow bullying to continue
118
around the clock, anonymously, and more maliciously. With a feel-
112. Williams, On-Line Anonymity, supra note 103, at 696.

113. Griffiths et al., supra note 101, at 30.
114. Id.
115. Williams, On-Line Anonymity, supra note 103, at 694.
116. See generally Lyrissa Barnett Lidsky, Anonymity in Cyberspace: What Can We Learn from
John Doe?, 50 B.C. L. REV. 1373 (2009) (examining the evolution of the law governing libel
suits against anonymous defendants based on Internet speech); Lyrissa Barnett Lidsky, Si-
lencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 855 (2000) (noting
that when corporations bring defamation suits against Internet users, these suits threaten
to suppress legitimate criticism); Susanna Moore, The Challenge of Internet Anonymity: Protect-
ing John Doe on the Internet, 26 J. MARSHALL J. COMPUTER & INFO. L. 469 (2009).
117. See Citron, supra note 102, at 83 (noting that cyberbullies writing under pseudo-
nyms “have little fear that victims will retaliate against them or that they will suffer social
stigma for their abusive conduct”); Darby Dickerson, Cyberbullies on Campus, 37 U. TOL. L.
REV. 51, 56 (2005) (noting that cyberbullies are “emboldened by the anonymity and pseu-
donymity that e-mail and the Internet can provide”); Ari Ezra Waldman, Hostile Educational
Environments, 71 MD. L. REV. 705, 749 (2012) (discussing cyberbulling in an educational
context).
118. See Dickerson, supra note 117, at 56 (noting that “[t]echnology affords bullies 24/7
access to potential victims”); Mark Franek, Rise of the Cyberbully Demands New Rules,
CHRISTIAN SCI. MONITOR, May 10, 2004, at 9 (noting that cyberspace is accessible “just
119
ing of anonymity, bullies on the Internet act on impulse. As one
commentator has noted, “technology allows bullies to be meaner,
more frequently, with more allies, before an inestimable audience. It
gives them a greater sense of invincibility and inhibits their fear of be-
120
ing caught and punished.”
Compared to these free speech and criminal law aspects, relative-
ly little analysis is available on how anonymity drives commodification.
As many markets in cyberspace feature anonymous or semi-
anonymous transactions, my contention is that they may encourage
non-traditional markets to form. Aside from facilitating purchases,
markets also are socially constructed spaces and, in a capitalist econ-
omy, they play a vital role in social interactions. Consider the local
souk in a rural agricultural village. The market brings buyers and
sellers together to interact in a social space—they can commiserate
about crop failures, animals, and perhaps learn about larger market
trends as they talk amongst themselves. The participants will know
each other personally, and will be repeat players.
Participants in an online market, however, act in ways vastly dif-
ferent from the way they would in a village souk. With technology,
market participants have little or no information to tell them with
whom they are dealing. To substitute for the face-to-face interaction
between buyers and sellers, other proxies for trust have emerged via
intermediaries. For example, seller ratings on platforms such as eBay
121
and Amazon.com signal to buyers whether a seller is trustworthy. If
goods are shipped late, damaged, or broken, a seller may receive poor
122
ratings, which would warn other purchasers to avoid that merchant.
In the past, if a buyer wanted to purchase a good or service from
the “gray market,” or even a good or service that might be legal, but
about anywhere, anytime”); Glenn R. Stutzky, Cyber Bullying Information, INST. FOR PUB.
POLICY AND SOC. RESEARCH, http://www.ippsr.msu.edu/Documents/Forums/2006
_Mar_CYBER_BULLYING_INFORMATION_2006%20—%20Provided%20by%20Mr.
%20Glenn%20Stutzky.pdf (last visited Sep. 29, 2011) (noting that cyberbullying is “not
bound by time or geography”); Waldman, supra note 117, at 711-15 (defining and distin-
guishing cyberbullying and cyberattacking).
119. Franek, supra note 118.
120. Dickerson, supra note 117, at 56.
121. See Lior Jacob Strahilevitz, “How’s My Driving?” For Everyone (and Everything?), 81
N.Y.U. L. REV. 1699, 1703 (2006) (discussing eBay’s reputation system as a successful
means of ensuring the reliability of sales in the online marketplace).
122. Seller Performance Standards, EBAY, http://pages.ebay.com/help/policies/seller-
non-performance.html (last visited Mar. 2, 2012).
was perhaps unsavory, it was difficult to make that purchase anony-

mously. Certain types of alcoholic beverages could only be purchased
in certain places, from approved retailers, on particular days and
times; alcohol bottles were hidden from view in brown paper bags.
123
The same is true of pornography or sexual aids. If a person physi-
cally had to go out in public to a store in order to purchase such an
item, there was the risk that they would be seen by a co-worker, friend
or neighbor. Along with the purchase came the further risk that the
purchaser might be judged or ridiculed. Today, with anonymous
online shopping, purchasers can buy anything from the most innocu-
ous to the most embarrassing of items without revealing their identi-
ties. Removing the inhibitions associated with providing one’s name
means many items can be monetized that would have been unthinka-
ble before.
The concepts of anonymity and deindividuation therefore be-
come central to any discussion of cyber commodification. Anonymity
lends to the proliferation of taboo markets for two reasons. If a par-
ticipant in a taboo market does not want to be identified or held ac-
countable for his or her participation in the marketplace, then the
anonymity offered by the Internet is the sensible and rational medium
for his or her transaction. The Internet offers greater anonymity than
face-to-face marketplaces; therefore, a participant, if concerned with
stigma or judgment, is more likely to conduct his or her transaction
anonymously on the Internet.
As an additional matter, Internet marketplaces may display a par-
ticular culture or promote non-normative behavior. If a specific web-
site or marketplace invites an individual to join a group, the individu-
al’s membership in the group may cause deindividuation and a loss of
self-awareness. Membership on a website that then promotes a par-
ticular kind of unconventional marketplace could lead some individ-
uals to a loss of self-awareness and deindividuation. Here I focus on
two unconventional markets that are driven by anonymity: the online
market for adultery and the market for baby naming rights.
1. The Market for Adultery

124
With its branding tagline, “Life is short[, h]ave an affair,” the
dating website Ashley Madison focuses on a specific demographic:
123. Indeed, pornography does a brisk online business. In 2006, for example, Internet-
based porn sales reached $2.8 billion. Jon Swartz, Purveyors of Porn Scramble to Keep up with
Internet, USA TODAY, June 12, 2007, at 4B.
124. ASHLEY MADISON, http://www.ashleymadison.com/ (last visited Mar. 2, 2012).
125
those who are married. In the United States, the user demographic
of the website is heavily male; but in Australia, where prostitution is
legal, and married men often patronize prostitutes, married women
126
often avail themselves of the website. Before the advent of the In-
ternet, those who were seeking to have an extra-marital affair could
not trumpet their desires; a personal advertisement in a newspaper
could lead to discovery by a spouse. The Ashley Madison website,
therefore, thrives on promoting a sense of anonymity in its users’ af-
fairs.
While posting a profile on the Ashley Madison website is free,
127
contacting other members requires payment. Users can look at
other member’s profiles and “test the waters,” but if they want to initi-
128
ate contact, they have to purchase access. Credit card charges show
up under the name of an innocuous sounding business, so as not to
alert a suspicious spouse that money is being spent on a dating web-
129
site. Customers can also pay using other means, such as a money
order, electronic funds transfer from their bank, or pre-paid gift
130
card. These alternate methods of payment help a customer keep
his or her use of the website hidden from a partner or spouse.
Ashley Madison’s business model depends on promoting a sense
of anonymity among its users; the website therefore strongly promotes
the concept of privacy and anonymity as a key selling point for its cus-
tomers. The home page for the website features a woman holding
131
her finger over her lips, illustrating the privacy the website offers.
The tagline under the website reads, “The world’s leading married
dating service for discreet encounters,” with the word discreet empha-
132
sized. A Time article discussed the latest marketing tactic used by
133
Ashley Madison and other similar websites: mobile cheating. The
125. See id. (“Ashley Madison is the world’s leading married dating service for discreet
encounters.”).
126. Adulterers Only, SYDNEY MORNING HERALD, Aug. 18, 2012, at 20.
127. Frequently Asked Questions, ASHLEY MADISON, supra note 124.
128. Id.
129. Adulterers Only, supra note 126.
130. Information on payment methods is available to male users who create a profile at
ASHLEY MADISON, supra note 124.
131. Id.
132. Id.
133. Jeremy Caplan, Cheating 2.0: New Mobile Apps Make Adultery Easier, TIME, June 29,
2009, available at http://www.time.com/time/magazine/article/0,9171,1909602,00.html.
websites have created mobile applications or “apps” to allow users to

search online profiles via their cell phones without leaving suspicious
134
electronic trails on their home computer. Anonymity on the Inter-
net, however indirectly, has led to the monetization of adultery.
2. Baby Names and Branding Rights

Another example of anonymity facilitating the development of a
market can be seen in the purchase and sale of baby naming rights.
Online markets have arisen to facilitate naming and branding. Sell-
ing naming rights to your child most probably would be seen as odd
in a small community where everyone knows each other—so odd, in
fact, that it might even be seen as a matter that should be prevented
by law. After all, most people name their children in a way that is
meaningful within their family, or perhaps to give honor to an histor-
ical figure—not as a way to make money. Despite that, today some
135
parents are selling the rights to name their children online.
There is historical precedent addressing the sale of baby names
in the context of the consideration doctrine. In an influential 1882
136
case, Wolford v. Powers, the Indiana Supreme Court held that the
137
right to name a child constituted good consideration. In that case,
an elderly friend of the family promised the sum of $10,000 to help
the family’s younger son complete his education, but asked in return
138
that the child be named after him. Although the court viewed this
agreement as similar to a gift to the child, it concluded that the father
did give up the right to name his son and that naming rights in other
139
contexts, such as a named university endowed chair, did have value.
Thus the court enforced the promise, holding that consideration ex-
140
isted. A decade later in Diffenderfer v. Scott, 141 an Indiana Appeals
134. Id.
135. What’s in a Name? Four Thousand and Fifty Dollars, FREAKONOMICS.COM (Jan. 13,
2009, 9:40 AM), http://www.freakonomics.com/2009/01/21/whats-in-a-name-four-
thousand-and-fifty-dollars/?scp=1&sq=baby+naming+rights&st=nyt; Matthew Purdy, Our
Towns; A Boy Named Soup?, N.Y. TIMES, Aug. 1, 2001, at B1; Joshua Rhett Miller, Woman
Blames eBay for Thwarting Baby Name Auction, FOX NEWS (Aug. 13, 2009),
http://www.foxnews.com/story/0,2933,539311,00.html.
136. 85 Ind. 294 (1882).
137. Id. at 303–04.
138. Id. at 294–95.
139. Id. at 308.
140. Id. at 303–04.
Court treated the consideration question as settled, citing Wolford v.

142
Powers. Similar decisions in other jurisdictions followed, resting up-
143
on the same logic.
For example, the Massachusetts Supreme Judicial Court adopted
144
the Wolford rule, noting in Eaton v. Libbey, a 1896 case, that “[w]e
have no doubt that the privilege of naming a child is a valid consider-
ation for a promise. . . . Gifts to a child because of its name are com-
mon, and a change of name is often made the condition of a gift or
145
bequest.” Further, in 1914, the Supreme Judicial Court of Massa-
146
chusetts noted in Gardner v. Denison that the “privilege of naming a
child is a valid consideration for a promise to pay money,” and that
the child “loses the opportunity of receiving a more advantageous
name, and is compelled to bear whatever detriment may flow from
147
the name imposed upon him.” While at first, the possibility of “det-
riment” flowing from a name may seem somewhat odd—other than in
playground teasing—the popular book Freakonomics discusses, at
length, the fact that there is a correlation between a person’s name
148
and his or her job and financial prospects.
141. 32 N.E. 87 (Ind. App. 1892).

142. Id. at 88.
143. See, e.g., Whyner v. Berg, 231 P.2d 39, 44 (Cal. 1951) (collecting cases that demon-
strated that “[t]he privilege of naming a child is valid consideration for a promise”); Daily
v. Minnick, 91 N.W. 913, 914 (Iowa 1902) (citing Wolford v. Powers as one of the cases estab-
lishing that “the privilege of naming a child is a valid and legal consideration for a prom-
ise”); Babcock v. Chase, 36 N.Y.S. 879, 879 (N.Y. Gen. Term 1895) (using the Wolford doc-
trine to determine that naming a child was “sufficient consideration” for a promise).
144. 42 N.E. 1127 (Mass. 1896).
145. Id.
146. 105 N.E. 359 (Mass. 1914).
147. Id. at 360.
148. See STEVEN D. LEVITT & STEPHEN J. DUBNER, FREAKONOMICS 179–204 (2005) (dis-
cussing earning prospects for job seekers on the basis of their names); see also Marianne
Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Than Lakisha and
Jamal? A Field Experiment on Labor Market Discrimination (Nat’l Bureau of Econ. Research,
Working Paper No. 9873, 2003), available at http://www.nber.org/papers/w9873 (collect-
ing empirical data showing that having an African American sounding name reduced the
likelihood of receiving an interview when compared with similarly skilled and educated
applicant with white sounding names); Angela Onwuachi-Willig & Mario L. Barnes, By Any
Other Name?: On Being “Regarded As” Black, and Why Title VII Should Apply Even If Lakisha and
Jamal Are White, 2005 WIS. L. REV. 1283 (using the results of Bertrand and Mullainathan’s
Many of these well-established precedential cases, however, in-

volved a close relationship, at times with a blood tie, between a family
and an older, wealthier individual, often a widow or widower without
children. For example, in Gardner, the court mentioned that the el-
derly man who made the promise regarding the child’s name lived
149
with the family of the child’s father. After the will was read, the
man died without making any provision for the child that had been
150
named after him. In this way, some of the “bargains” that were
struck around the child’s name seem like another way of formalizing
extended familial and caretaking relationships.
Modern day online auctions of naming rights to children, how-
ever, are structured as impersonal arms-length transactions. Rather
than looking like an arrangement to shore up extended familial rela-
tionships, these auctions look more like desperate pleas for money.
The bids are probably from parents in difficult financial circumstanc-
es who would be willing to name their child “Xanax” or “Clorox” for
151
the right amount of money. But at the present time, that money
152
does not seem to be forthcoming from corporations. On the one
hand, corporations may sense that these types of auctions are still
somewhat gauche or taboo and would not result in the type of “good
press” that most businesses seek for publicity purposes. On the other
hand, some might feel that any publicity is good publicity—which
might explain why a casino paid $10,000 to advertise its brand on a
153
woman’s forehead.
B. Reduction of Geographic Barriers and Other Transaction Costs

In addition to anonymity, other features of the Internet seem to
promote the forces of cyber commodification. These features include
the decreasing relevance of geography and even national borders,
investigation to analyze “the effectiveness of Title VII as a remedy for and deterrent to race
discrimination in the hiring market”).
149. Gardner, 105 N.E. at 360.
150. Id.
151. Purdy, supra note 135.
152. Don Oldenburg, Ringing Up Baby; Companies Yawned at Child Naming Rights, but Was
It an Idea Ahead of Its Time?, WASH. POST, Sept. 11, 2001, at C10; Matthew Kauffman, New-
born Naming Game: No Takers, HARTFORD COURANT, Aug. 15, 2001.
153. Aaron Falk, Mom Sells Face Space for Tattoo Advertisement, DESERET NEWS (June 30,
2005), http://www.deseretnews.com/article/600145187/Mom-sells-face-space-for-tattoo-
advertisement.html.
and the lack of clear jurisdictional legal boundaries. In short, the In-
ternet lowers transaction costs dramatically, and this propels the forc-
es of commodification. The two clearest illustrations of these forces
are virtual work and crowdfunding.
1. Virtual Work
As Internet and computer technology becomes increasingly
ubiquitous and less expensive, these developments have forged new
ways to buy and sell not only objects, but also labor and time. In a
previous article, I described this phenomena, which I have termed
154
“virtual work,” but which has also been alternately described as “la-
155
bor as a service,” “peer production,” or “playbor.” As noted by Ran-
dall Stross in the New York Times, crowdsourcing technology has ena-
bled the slicing of labor into small increments, micro-tasks that break
156
down a large job into its lowest common denominator. After the
tasks are farmed out to individual workers, they are then re-
aggregated and the overall job is completed. This is the process
157
known as crowdsourcing.
In fact, millions of people worldwide entertain themselves or
supplement their incomes—or both—by working within virtual worlds
such as Second Life or casually “clicking” to make a few dollars for
158
simple tasks on websites like Amazon.com’s Mechanical Turk. Be-
154. Cherry, Virtual Work, supra note 30, at 483–84.

155. See Trebor Scholz & Laura Liu, From Mobile Playgrounds to Sweatshop City, in
SITUATED TECHNOLOGIES PAMPHLETS 7, 10–25 (2010), http://www.situatedtechnologies
.net/?q=node/105 (discussing the evolution of virtual work and various forms of it).
156. See Stross, supra note 28, at A (discussing the development of small-task labor con-
ducted over the Internet and comparing it to “Ford’s assembly lines”).
157. See, e.g., Jeff Howe, The Rise of Crowdsourcing, WIRED, June 2006, at 176, 178–79 (us-
ing term “crowdsourcing” to describe work performed with the aid of contributions from
diverse groups of users on the Internet); Debora Halbert, Mass Culture and the Culture of the
Masses: A Manifesto for User-Generated Rights, 11 VAND. J. ENT. & TECH. L. 921, 929 (2009)
(“Computer technology in the hands of the masses has made available software programs
that can create music, documents, and art just as well as expensive studios did in the past.
This democratization of technology disrupts the monopoly on the creative means of pro-
duction. The world of amateur production also demonstrates that many are motivated by
noncommercial reasons.”).
158. EDWARD CASTRONOVA, SYNTHETIC WORLDS: THE BUSINESS AND CULTURE OF
ONLINE GAMES 2–3 (2005); Amazon Mechanical Turk, AMAZON,
https://www.mturk.com/mturk/welcome (last visited Dec. 19, 2012).
cause the money in virtual worlds is convertible to real world money,

159
virtual work is having an impact on real world economies. One
economist, Edward Castronova, has estimated that the economy of
Sony’s game EverQuest and its world, Norrath, has a per capita GNP
160
equivalent to that of Bulgaria. Another commentator, discussing
entrepreneurship in virtual worlds, had this to say:
[V]irtual worlds are home to serious business conducted by
hundreds of thousands of users. One study suggests that vir-
tual economies may reach the size of small countries. The
business varies from mining virtual gold to real gambling
and anything in-between. Virtual world entrepreneurship is
somewhat ironic. Much of the fun of virtual worlds is un-
predictability. . . . Yet, entrepreneurship thrives in these
worlds. Like any economy, where there is a demand for
something of value and someone willing to supply it, a mar-
161
ket will form.
These pursuits are far more than mere “games.” Recently, em-
ployment agencies like Manpower and Randstad have begun recruit-
ing, collecting resumes, and performing interviews with candidates on
159. See CASTRONOVA, supra note 158, at 2 (noting that annual exchange of virtual
money and goods are estimated at $30 million in the United States, and $100 million
globally).
160. Id. at 19.
161. Michael Risch, Virtual Rule of Law, 112 W. VA. L. REV. 1, 6 (2009) (footnotes omit-
ted); see also Michael Capiro, Virtual Worlds with Real-World Losses, 56 FED. LAW. 12 (2009)
(reporting estimate from investment banking firm Piper Jaffray that virtual sales of goods
were estimated to be $621 million in 2009 and were expected to grow to nearly $2.5 billion
by 2013); Andrea Vanina Arias, Life, Liberty, and the Pursuit of Swords and Armor: Regulating
the Theft of Virtual Goods, 57 EMORY L.J. 1301, 1302 (2008) (citing sources estimating that
trade in virtual goods amounts from approximately $200 million to $2 billion a year);
Theodore P. Seto, When Is a Game Only a Game? The Taxation of Virtual Worlds, 77 U. CIN. L.
REV. 1027 (2009). Professor Seto notes that Ailin Graef,
a Chinese-born citizen and resident of Germany, had parlayed an initial invest-
ment of $9.95 into virtual planned communities and other virtual holdings hav-
ing a real-world fair market value, in the aggregate, of more than one million
U.S. dollars. In theory, Graef could have pulled her Second Life earnings out at
any time; at some point, she did in fact withdraw enough to found an eighty-
employee real-world company.
Id. at 1027 (footnote omitted).
162
virtual worlds such as Second Life. In the wake of the economic
downturn, websites such as ELance, which serve to connect compa-
nies seeking short term help with workers willing to take on short
163
term assignments, have been doing brisk business. Throughout cy-
berspace, workers hold various jobs that, in the words of leading
commentators, make it possible to “work in a fantasy world to pay rent
164
in reality.”
Recently, Professor Jonathan Zittrain noted that the advent of
virtual work simultaneously provides immense promise and peril for
165
workers in the new digital economy. New technology allowing col-
laboration can provide remarkable opportunities for workers and
employers alike. Traditional limitations on collaboration—of travel,
of meeting, of commuting—can be minimized or reduced. Employ-
162. Manpower and Randstad have advertisements posted on YouTube touting their
recruiting services in Second Life. See, e.g., Virtual Jobs at Ranstad, YOUTUBE (Apr. 12,
2007), http://www.youtube.com/watch?v=k5xF43POYv8&feature=PlayList&p=7B20448AB
A3A94B8&playnext=1&playnext_from=PL&index=43; Manpower’s Machinima on the World of
Virtual Work, YouTube (July 12, 2007), http://www.youtube.com/watch?v=sNjxucDI8bo.
163. See Ann Meyer, Fewer Strings a Draw for Employers: Virtual Contract Workers, Internet
Tools Help Firms Grow, Afford to Add Talent, CHI. TRIB., Nov. 23, 2009, at 19 (noting that
“[y]ear-over-year project hiring on Elance rose 40 percent in October, and more than
300,000 jobs have been posted on the Web site during the past 12 months”); cf. Emma L.
Carew, Tough Times Lead many into Virtual Work World, STAR-LEDGER, July 12, 2009, at 6
(noting that that the poor economy has pushed many employers into hiring virtual office
assistants).
164. F. Gregory Lastowka & Dan Hunter, The Laws of the Virtual Worlds, 92 CALIF. L. REV.
1, 11 (2004).
165. Jonathan Zittrain, Work the New Digital Sweatshops, NEWSWEEK, Dec. 7, 2009. Ac-
cording to Professor Zittrain:
It all sounds great, and in many ways it is. The Internet has created new markets
for human labor potentially gleaned anywhere in the world . . . . [But] online
contracting circumvents a range of labor laws and practices, found in most de-
veloped countries, that govern worker protections, minimum wage, health and
retirement benefits, child labor, and so forth.
Id.; see also Robert D. Hof, The End of Work as You Know It, BUS. WK., Aug. 19, 2007, at 80.
Hof asks:
Will this be a new world of empowered individuals encased in a bubble of time-
saving technologies? Or will it be a brave new world of virtual sweatshops, where
all but a tech-savvy few are relegated to an always-on world in which keystrokes,
contacts, and purchases are tracked and fed into the faceless corporate maw?
Id.
ers can use virtual spaces to make contacts and recruit talent, without
166
spending money on transportation. Certainly, the possibility of
matching workers and jobs in cyberspace creates more opportunities
167
and more efficient labor markets. These changes can benefit work-
ers, in part by increasing flexibility and allowing workers more control
168
over when and how they are able to perform work. In addition,
employees have used virtual worlds as part of their protected right to
169
organize and protest. For example, in September 2007, over 2,000
employees protested IBM Italy’s pay package by appearing at IBM’s
170
headquarters in Second Life.
Virtual work, however, presents many of the same enduring prob-
lems that workers’ rights advocates have struggled with over the years.
171
Gold farming operations and other types of virtual work have been
172
criticized by commentators as creating new “virtual sweatshops.”
For years corporations have engaged in races to the bottom, not only
in selecting the jurisdiction of incorporation that will govern their in-
166. See, e.g., Joel Dresang, Manpower Opens Office in Online Virtual Society, MILWAUKEE J.
SENTINEL, July 13, 2007, at D1 (noting that the Manpower recruiting agency opened an
office within Second Life); Gabrielle Monaghan, A Virtual Way to Find Real Talent, SUNDAY
TIMES, March 16, 2008, at 19 (describing KPMG and Accenture recruiting events on Sec-
ond Life).
167. See Kermit Pattison, How to Enlist a Global Work Force of Freelancers, N.Y. TIMES (June
25, 2009), http://www.nytimes.com/2009/06/25/business/smallbusiness/25freelance.
html?fta=y (noting ways in which working with freelancers can increase productivity); cf.
ALAN HYDE, WORKING IN SILICON VALLEY: ECONOMIC AND LEGAL ANALYSIS OF A HIGH-
VELOCITY LABOR MARKET (2003).
168. Carol Sladek & Ellie Hollander, Where is Everyone? The Rise of Workplace Flexibility, 25
BENEFITS Q. 17, 17–18 (2009) (noting that flexibility is “being able to be at Little League at
3:30 in the afternoon, with the ability to catch up on work after dinner with the family.
Flexibility is a way for the employer to acknowledge and enable the whole person.”).
169. See 29 U.S.C. §§ 151–169 (2006) (federal laws regarding the rights of workers to
organize and protest).
170. On Strike, Virtually, ECONOMIST, March 13, 2008, at 87.
171. For a definition of “gold farming,” see infra note 191 and accompanying text.
172. See David Barboza, Ogre to Slay? Outsource it to Chinese, N.Y. TIMES, Dec. 9, 2005, at
A1 (explaining how gold farming works); cf. Wendy N. Duong, Ghetto’ing Workers with Hi-
Tech: Exploring Regulatory Solutions for the Effect of Artificial Intelligence On “Third World” Foreign
Direct Investment, 22 TEMPLE INT’L & COMP. L.J. 63 (2008) (discussing the impact of virtual
work in developing countries).
173
ternal corporate affairs, but also to find the jurisdictions with the
cheapest labor and the least regulation of employment relation-
174
ships. The concern about virtual work is that it will lead to further
acceleration of the race to the bottom and ultimately the further ero-
175
sion of worker’s rights and benefits.
In a popular press article, Professor Zittrain set out a useful ty-
pology of crowdsourcing based on the level of knowledge required to
176
complete a given work task. In the level requiring the most skill,
companies post difficult scientific problems and promise a reward for
177
the answer. For example, on the Innocentive website, 178 highly
skilled scientists try to solve complicated problems to reap financial
prizes. In the middle skill level, some websites rate and grade workers
at various tasks to ensure quality control for routine backroom opera-
179
tions, such as that performed by customer service representatives.
180
For example, on LiveOps, telephone calls are routed to individual
customer service workers on their cell phones. Finally, at the lowest
end, there is work that encompasses tasks that require only minimal
awareness, such as the entry of a few characters or the clicking of a
173. See, e.g., Brett H. McDonnell, Getting Stuck Between Bottom and Top: State Competition
for Corporate Charters in the Presence of Network Effects, 31 HOFSTRA L. REV. 681, 683–89 (2003)
(describing the process of choosing a jurisdiction of incorporation).
174. See, e.g., Archie A. Alexander III, American Diagnostic Radiology Moves Offshore: Is This
Field Riding the “Internet Wave” into a Regulatory Abyss?, 20 J.L. & HEALTH 199, 199–205
(2006/2007) (analyzing outsourcing of medical services); Christina Laun, The Central Amer-
ican Free Trade Agreement and the Decline of U.S. Manufacturing, 17 IND. INT’L & COMP. L. REV.
431, 431–32 (2007) (considering the impact of Central American Free Trade Agreement
on U.S. manufacturing industries); Raul Delgado Wise & James M. Cypher, The Strategic
Role of Mexican Labor under NAFTA: Critical Perspectives on Current Economic Integration, 610
ANNALS 120, 120–22 (2007) (discussing the impact of the North American Free Trade
Agreement on outsourcing); Keith Woffinden, Surfing the Next Wave of Outsourcing: The Eth-
ics of Sending Domestic Legal Work to Foreign Countries Under New York City Opinion 2006-3,
2007 BYU L. REV. 483, 483–86 (2007) (discussing the legal and ethical implications of out-
sourcing legal work).
175. Katherine Van Wezel Stone, To The Yukon and Beyond: Local Laborers in A Global
Market, 3 J. SMALL & EMERGING BUS. L. 93, 95–104 (1999) (describing the race to the bot-
tom phenomenon within global labor markets).
176. Zittrain, supra note 165.
177. Id.
178. INNOCENTIVE, http://www.innocentive.com (last visited Mar. 2, 2012).
180. LIVEOPS, http://www.liveops.com (last visited Mar. 2, 2012).
181
mouse in a second or two. Regardless of the level of skill involved,
crowdsourcing takes the products of many workers to create some-
182
thing greater than the sum of its parts.
Crowdsourcing and other types of distributed work are likely to
increase in frequency in the years to come. While Amazon’s Mechan-
ical Turk was once synonymous with crowdsourcing, there are now
many more websites that promise to help users harness the power of
183
the crowd. The tasks that can be assigned through crowdsourcing
184
are virtually limitless. Other websites work subtly, sometimes with-
out the knowledge of the user. For example, to prevent websites and
blogs from being swamped with “spam” from automated comment
185
generators, many sites require users to enter a word. The reCAP-
TCHA software uses this anti-spam device to digitize books and news-
186
papers by aggregating them one word at a time. In another twist,
some websites are using fun games to entice users to work for them.
For example, one website presents players with puzzles, the answers to
187
which help scientists determine how proteins fold. Crowdsourcing
has been used to check surveillance cameras at the United States-
Mexico border to look for aliens, and to use computers to help SETI
188
in its search for a different type of alien.
Other forms of virtual work blur the line between work and lei-
sure. A number of China’s new “factories” feature computer workers,
typing and clicking away, playing video games, collecting coins and
189
swords, and fighting monsters. Known as “gold farmers,” these

182. Howe, supra note 157.
183. See id. (discussing various forms of crowdsourcing).
184. Pamela Licalzi O’Connell, Mining the Minds of the Masses, N.Y. TIMES, March 8,
2010, at G1(describing NASA’s use of crowdsourcing); Jamar Younger, Students Aid Mars
Scientists, ARIZ. DAILY STAR, Feb. 28, 2008, at 4 (discussing the use of technology to involve
students in science work involving Mars).
185. For an explanation of this process, see Jonathan Zittrain, Privacy 2.0, 2008 U. CHI.
LEGAL F. 65, 76.
186. RECAPTCHA, http://recaptcha.net/ (last visited Mar. 2, 2012).
187. FOLDIT, fold.it/portal/ (last visited Mar. 2, 2012). The game is described in more
detail in Lewis Dartnell, Your Computer Needs You: Addictive Online Games That Tap Your
Brainpower Without You Noticing Can Help to Crack Problems That Have Defeated the Most Power-
ful Computers, NEW SCIENTIST, Nov. 8, 2008, at 36.
188. BENKLER, supra note 47, at 81–83.
189. Barboza, supra note 172.
workers are paid to harvest virtual treasures for online gamers in the
190
developed world. These affluent gamers want to advance quickly
within the game and, tired of the repetitive tasks necessary to build a
191
high-level character, would prefer to pay others to do the work. As
a result, gold farming operations have appeared in many developing
192
countries, where labor costs are low. For example, a company
named Blacksnow opened operations in Tijuana, Mexico, paying
Mexican nationals dollars a day to kill dragons and obtain objects in
193
Mythic Entertainment’s online Camelot game. Acting as an inter-
194
mediary, Blacksnow later resold these virtual objects on eBay and
other online exchange sites to high bidders in developed countries,
195
thereby taking advantage of lower labor costs in developing nations.
190. Id.
191. According to another recent article on Chinese gold farmers, there are now three
models for reaping the bounty of the virtual world. In the traditional, more typical model
which is the one described above, the gold farmers use their experienced characters in
order to perform repetitious tasks, garner valuables, and then, through intermediaries, sell
the virtual property in exchange for cash. In the second model, called “power leveling,” a
wealthy player will pay the gold farmers to play his character twenty-four hours a day, al-
lowing the character to become vastly powerful in a short period. Finally, the third model
involves assembling a team of Chinese players who guide the player to the highest levels
and then let the player receive the most valuable objects (which cannot be sold). See Julian
Dibbell, The Life of a Chinese Gold Farmer, N.Y. TIMES MAG., June 17, 2007, at 36.
192. Id.
193. When Mythic Entertainment attempted to shut down Blacksnow’s trading site,
Blacksnow brought suit in the Central District of California but the suit was settled before
trial. See Richard Raysman & Peter Brown, Novel Legal Issues in Virtual Property, 234 N.Y. L.J.,
Aug. 10, 2005, at 28, col. 1 (describing the complaint and the legal issues surrounding the
complaint).
194. eBay is a well-known Internet auction website. EBAY, http://www.ebay.com (last
visited Mar. 2, 2012).
195. Class Action Complaint at ¶ 27, Hernandez v. Internet Gaming Entm’t, Ltd., No.
07-21403-Civ (S.D. Fla. May 31, 2007). In this pending lawsuit, users who played the game
World of Warcraft sued an online auction website that employed gold farmers, alleging
that the monetization and sale of virtual property devalued the currency in the world and
removed scarce resources. The complaint alleged that “IGE gold farmers are often citi-
zens of developing third world countries who spend up to 14 hours per day, or more,
logged into World of Warcraft® collecting resources and World of Warcraft® gold.” Id.; see
also Complaint, Blizzard Entm’t, Inc. v. In Game Dollar, L.L.C., No. 07-0589 (C.D. Cal. May
22, 2007) (terminated after permanent injunction granted, Jan. 28, 2008) (alleging abuses
Another model that uses these relative differences in wages is to have

computer workers in developing countries “play” the characters of
196
gamers in developed countries while they sleep. Workers in devel-
oping countries are playing these online games not as entertainment,
197
but as a means of making a living. Their alternatives may include
far more dangerous work in a dirty, crowded, and unsafe factory or
198
barely scraping by as a subsistence farmer.
All of this is to say that, because of the way crowdsourcing tech-
nology has developed, and the existing vacuum in meaningful regula-
tion, virtual work straddles the line between commodified and non-
commodified activity. Virtual work, rather like many other aspects of
emerging technologies on the internet, is a diverse mix of free collab-
199
oration coexisting with monetized and commodified settings. As
Professor Lior Strahilevitz has described, one of the models for click-
work depends on collaboration, and this collaboration is not always
successful if the market economics are subtracted from the equa-
200
tion. It may be that virtual worlds could be big enough for several
economies (or non-economies, as the case may be) to co-exist with
each other. Here is a controversial question: Could non-
of workers in developing countries); Complaint, MDY Indus., L.L.C. v. Blizzard Entm’t,

Inc., No. 06-2555 (D. Ariz. Oct. 25, 2006)(same).
196. Dibbell, supra note 191.
197. See David Barboza, Video Game Sweatshops? Chinese Players Toil for Virtual Booty, INT’L
HERALD TRIB., Dec. 9, 2005, at 1 (describing factories in China where gold farmers work to
earn their living).
198. According to an ILO survey that tracked changes in average weekly working hours
in manufacturing between 1995–2004, average employees in different countries work vary-
ing numbers of hours. In the United States, the average employee working in manufactur-
ing worked slightly less than forty hours per week as of 2001. Americans worked more
than the French, whose workers averaged 35.65 hours, and worked more than most of the
average workers in countries in industrialized Europe. Workers in the developing world
worked much harder, with more hours worked in Argentina, Hong Kong, and Mexico.
The hardest working country was Turkey where employees worked on average 51.3 hours
per week. SANGHEON LEE ET AL., WORKING TIME AROUND THE WORLD: TRENDS IN
WORKING HOURS, LAWS AND POLICIES IN A GLOBAL COMPARATIVE PERSPECTIVE 28–31
(2007).
199. For example, while the Internet is encouraging a culture of sharing, open source
software, and distributed, collaborative work, see Yochai Benkler, Coase’s Penguin, or, Linux
and The Nature of the Firm, 112 YALE L.J. 369, 371–74 (2002), many aspects of virtual worlds
or crowdsourcing are commodified.
200. Lior Jacob Strahilevitz, Wealth Without Markets?, 116 YALE L.J. 1472, 1498 (2007).
commodification lead to the exploitation of virtual workers? I return

to this question in the last Part of the Article.
2. Crowdfunding
Crowdfunding is an excellent illustration of the forces of cyber
commodification. While, traditionally, there have been numerous
barriers to raising investment capital, such as the limited number of
individuals with large amounts of money to invest or an innovator’s
limited ability to find and contact those individuals, these barriers can
201
be overcome through new crowdfunding models.
Crowdfunding appeals to those with small amounts of money to
202
invest. Crowdfunding websites allow entrepreneurs to communi-
cate information about their businesses and endeavors to a larger au-
203
dience. According to a recent book, crowdfunding covers a multi-
tude of activities:
Crowdfunding describes the collective cooperation, atten-
tion and trust by people who network and pool their money
and other resources together, usually via the Internet, to
support efforts initiated by other people or organiza-
tions . . . . The crowdfunding space is quite diverse, com-
prised of many niches, and shares a lot of social network-
ing’s energy. Whether to solicit donations and create a fan
base for an around-the-world sailing adventure, to pre-sell
copies of a book, or to finance a startup in return for equity,
204
some form of crowdfunding is available.
Pooling their money allows individuals with only small amounts
to invest the ability to join in the market, often helping artists and
201. See David Lavinsky, Funding Fathers, SMART BUSINESS (Aug. 27, 2010),
http://www.sbaonline.com/2010/08/funding-fathers-the-birth-of-business-crowdfunding-
is-providing-new-ways-to-get-money/ (“Crowdfunding turns the tables, because there are
now more potential investors than entrepeneurs.”).
202. Jobs Act Opens Doors for Smaller Investors to Boost Crowdfunding Appeal, COLUMBUS
BUS. FIRST (Apr. 27, 2012), http://www.bizjournals.com/columbus/print-edition/2012/
04/27/jobs-act-opens-door-for-smaller.html?page=all.
203. C. Steven Bradford, Crowdfunding and the Federal Securities Laws, 2012 COLUM. BUS.
L. REV. 1, 5 [hereinafter Bradford, Crowdfunding].
204. KEVIN LAWTON & DAN MAROM, THE CROWDFUNDING REVOLUTION 1 (2010) (in-
ternal quotation marks omitted).
musicians produce their work or helping charitable organizations get

205
off the ground.
Until very recently, there was no exemption from the securities
laws for crowdfunding, since a general solicitation on a website would
have run afoul of the 1933 Securities and Exchange Act rules against
206
unregistered public offerings. As a result, in recent years crowd-
funding websites turned to alternative and creative investment forms.
For example, some crowdfunding websites followed the model of the
207
website Kiva, which promotes microfinance and promises no return
208
or interest on the amount, just a return of the capital. In these ways
people can put up small amounts of money for a good cause, rather
like a donation to a social entrepreneurship model like the Grameen
209 210 211
Bank. Other websites, like Kickstarter and IndieGoGo, provided
those who put up money receive a return in the form of discounted
products or free merchandise, but not the customary monetary divi-
212
dend traditionally associated with stock.
In April, 2012, the JOBS Act was signed into law, creating a small
exemption for crowdfunding. The new law allows for a limited ex-
emption for crowdfunding of up to $1 million per year, with certain
limits on amounts per investor based on annual income or net worth,
and with particular requirements that crowdsourcing websites and
205. Thomas Lee Hazen, Crowdfunding or Fraudfunding? Social Networks and the Securities
Laws—Why Any Specially Tailored Exemption Should Be Conditioned on Meaningful Disclosure, 90
N.C. L. REV. 1735, 1736–37 (2012).
206. For a comprehensive analysis of the Securities and Exchange Act provisions pre-
existing the JOBS Act, see Joan MacLeod Heminway & Shelden Ryan Hoffman, Proceed at
Your Peril: Crowdfunding and the Securities Act of 1933, 78 TENN. L. REV. 879, 885–927 (2011);
see also Bradford, Crowdfunding, supra note 203, at 5 (discussing whether crowdfunding in-
vestments are subject to the Securities Act and other regulatory issues).
207. KIVA, http://www.kiva.org (last visited Sept. 7, 2012).
208. How Kiva Works, The Long Version, KIVA, http://www.kiva.org/about/how/even-
more (last visited Sept. 7, 2012).
209. See infra notes 272–275 and accompanying text.
210. KICKSTARTER, http://www.kickstarter.com (last visited Sept. 8, 2012).
211. INDIEGOGO, http://www.indiegogo.com (last visited Sept. 8, 2012).
212. Nikki D. Pope, Crowdfunding Microstartups: It’s Time for the Securities and Exchange
Commission to Approve a Small Offering Exemption, 13 U. PA. J. BUS. L. 973, 977–78 (2011);
Learn Why, INDIEGOGO, http://www.indiegogo.com/learn/why (last visited Sept. 8, 2012);
Terms of Use, KICKSTARTER, http://www.kickstarter.com/terms-of-use?ref=footer (last visit-
ed Sept. 8, 2012).
213
companies using those websites must meet. Needless to say, the
regulatory atmosphere for crowdfunding has now changed dramati-
cally. Professor Steven Bradford notes, however, that the costs of
complying with the crowdfunding exemption may be high enough
that only high profile or well-funded companies may be able to use it;
of course that somewhat defeats the purpose of assisting start-up
214
companies with their financing. While the regulatory environment
for crowdfunding has improved, we will need to see whether barriers
to entry will inhibit its growth.
III. THE PROCESS OF CYBER COMMODIFICATION

Historically, it is not uncommon for innovation to start with gift-
ed amateurs inventing or acting out of passion, then for the advance
to be taken over by business people and investors who integrate the
innovation into the existing economy and develop it for profit. One
could think about the development of cell phones and their relation-
215
ship to the earlier ham radio operators on the autopatch. Thinking
back to the Huffington Post example, what began as a gathering akin to
a liberal town hall meeting eventually became something closer to a
for-profit new-media business. This Part examines the business model
of craigslist, the monetization of Facebook, and the growth of social
entrepreneurship.
A. Free or Not to Be?: The Clash between eBay and Craigslist

216
In 2004, online auction giant eBay sought to acquire
217
craigslist, the largest online site for classified advertisements in
213. Jumpstart Our Business Startups (JOBS) Act, Pub. L. No. 112-106, § 301-05, 126
Stat. 306, 315–23 (2012).
214. C. Steven Bradford, The New Federal Crowdfunding Exemption: Promise Unfulfilled, 40
SEC. REG. L.J. 1, 3–4 (forthcoming Fall 2012), available at http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2066088.
215. Marc Stern, Autopatching May Have Been Parent of Cell Phone System; At Least It Seems
So, EXAMINER (July 27, 2012), http://www.examiner.com/article/autopatching-may-have-
been-parent-of-cell-phone-system-at-least-it-seems-so (describing the development from
Ham radios that were available for free to the public to the development of today’s cell
phone business).
216. eBAY, http://www.ebay.com/ (last visited Sept. 7, 2012).
217. Factsheet, CRAIGSLIST, http://www.craigslist.org/about/factsheet (last visited Sept.
7, 2012).
218
North America. While two of craigslist’s founders, Craig Newmark
and John Buckmaster, were not interested in selling the company,
they were amenable to having eBay buy out the shares of the remain-
219
ing (third) shareholder, who was actively shopping his shares. Un-
derstanding that they would only acquire a minority holding of
28.4%, eBay sought to protect its interests through cumulative voting
220
rights. Mathematically, cumulative voting would give eBay one seat
on the three-person craigslist board, with Newmark and Buckmaster
221
as the two other directors. From their perspective, Newmark and
Buckmaster were concerned that eBay would use the information they
222
learned as shareholders to compete with craigslist. As such, they
built in provisions to remove certain rights from eBay’s equity shares
223
if eBay started a competing business.
From the beginning, the relationship between eBay and craigslist
was particularly fraught. In his 2010 opinion, Chancellor Chandler of
the Delaware Court of Chancery categorized the two companies as
224
“[o]il and [w]ater.” Expounding upon this theme, Chancellor
Chandler explained:
[E]ven though both companies enjoy household-name sta-
tus, craigslist and eBay are, to put it mildly, different ani-
mals. Indeed, the two companies are a study in contrasts,
with different business strategies, different cultures, and dif-
ferent perspectives on what it means to run a successful
business. . . . Though a for-profit concern, craigslist largely
operates its business as a community service. Nearly all clas-
sified advertisements are placed on craigslist free of charge.
Moreover, craigslist does not sell advertising space on its
website to third parties. . . . For most of its history craigslist
has not focused on “monetizing” its site. The relatively small
amount of monetization craigslist has pursued (for select job
postings and apartment listings) does not approach what
many craigslist competitors would consider an optimal or
even minimally acceptable level. . . . eBay is a for-profit con-
cern that operates its business with an eye to maximizing
218. eBay v. Newmark, 16 A.3d 1, 8 (Del. Ch. 2010).

219. Id. at 9–10.
220. Id. at 11.
221. Id. at 13.
222. Id.
223. Id.
224. Id. at 7.
revenues, profits, and market share. . . . It has a large man-

agement team and a formal management structure. It em-
ploys over 16,000 people at multiple locations around the
world. . . . It might be said that “eBay” is a moniker for
225
monetization and that “craigslist” is anything but.
The clash of values played itself out in the years after eBay’s in-
vestment and eventually led to the dispute that landed the parties in
the Delaware courts. During this time, eBay advised craigslist on ways
to monetize the website, while Craig Newmark and John Buckmaster
226
rebuffed eBay’s suggestions. Meanwhile, eBay decided to launch its
227
own competing platform for online classifieds, Kijiji.com. Launch-
ing the competing website triggered serious consequences for eBay’s
investment, leading its shares to lose some of their associated rights,
228
per the original terms of the investment contract. Chancellor
Chandler ruled that while the new staggered board structure that
craigslist put in place was contemplated by the shareholder’s agree-
ment and was permissible, the poison pill and right of first refusal
229
provisions were impermissible.
In discussing the implementation of the poison pill, and the
threat to its corporate culture that craigslist perceived, the Delaware
Chancery Court engaged in a lengthy discussion about profit maximi-
zation. As the court noted in discussing the craigslist business model:
Jim and Craig did prove that they personally believe
craigslist should not be about the business of stockholder
wealth maximization, now or in the future. . . . The corpo-
rate form in which craigslist operates, however, is not an ap-
propriate vehicle for purely philanthropic ends, at least not
when there are other stockholders interested in realizing a
return on their investment. Jim and Craig opted to form
craigslist, Inc. as a for-profit Delaware corporation and voluntari-
ly accepted millions of dollars from eBay as part of a transac-
tion whereby eBay became a stockholder. Having chosen a
for-profit corporate form, the craigslist directors are bound
by the fiduciary duties and standards that accompany that
form. Those standards include acting to promote the value
225. Id. at 7–9.

226. Id. at 15.
227. Id. at 17.
228. Id. at 20.
229. Id. at 33, 48.
of the corporation for the benefit of its stockholders. The

230
“Inc.” after the company name has to mean at least that.
Here, the court privileged eBay’s more traditional business mod-
el and the concept of shareholder primacy above craigslist’s “public
231
service” business model. But in the new Internet economy, the
business model craiglist uses is not as odd as Chancellor Chandler’s
opinion might lead us to believe. Many of us might pay a few cents to
query directions from an online GPS mapping program each time we
use it. Others might pay to get information that is now freely availa-
232
ble on Wikipedia or other websites. Instead, however, these services
choose not to monetize, opting to build a free, open access service.
Similarly, rather than try to achieve maximum returns by wring-
ing every advertising dollar from its site, craigslist opted to build its
user base with a free and uncomplicated interface. By charging land-
lords a small fee to list properties in New York City, and also charging
employers for listing want-ads, craigslist keeps itself afloat while attain-
233
ing modest returns. If the format of the website were to change too
drastically, including too much monetization, craigslist might encoun-
ter resistance from users. In other words, once a non-commodified
website begins to include too many monetized elements, it might risk
losing its user base. Too much monetization too quickly could prove
to be the end of many a once-convenient website. And without the
230. Id. at 34.

231. For commentary on the dueling business models involved in the case, see Steven
M. Davidoff, What’s Next for eBay, Craigslist and Poison Pills, N.Y. TIMES (Sept. 13, 2010),
http://dealbook.nytimes.com/2010/09/13/whats-next-for-ebay-Craigslist-and-poison-
pills/ (noting that even charitable activities are usually done in the context of increasing
for-profit business, but craigslist is far below its profit-making potential); Craigslist Meets the
Capitalists, N.Y. TIMES (Dec. 8, 2006), http://dealbook.nytimes.com/2006/12/08/
Craigslist-meets-the-capitalists/ (noting the existence of a “‘culture clash’” between Wall
Street’s focus on maximizing revenue and craiglist’s disinterest in monetizing the website);
Joshua Fershee, Philanthropy as a Business Model: Comparing Ford to Craigslist, BUSINESS LAW
PROF BLOG (Sept. 10, 2010), http://lawprofessors.typepad.com/business_law/2010/09/
philanthropy-as-a-business-model-comparing-ford-to-craigslist.html (noting that craigslist’s
unique business strategy may run counter to the strategies used by other online commerce
companies).
232. See, e.g., Claire Cain Miller, Paying for Ads When Craigslist Is Free, N.Y. TIMES BITS
(Nov. 11, 2008, 2:22 PM), http://bits.blogs.nytimes.com/2008/11/11/paying-for-ads-
when-Craigslist-is-free/ (noting that web surfers will pay for better user experiences).
233. eBay, 16 A.3d at 8.
power of the crowd behind it, a business that relies on user input and
content may find itself out of business entirely.
Despite all of these possible justifications for craigslist to operate
as it did, the Delaware Chancery Court insisted upon analyzing the
problem through the narrow lens of shareholder profit maximization.
234
As such, the “eBay model” was triumphant. In light of this holding,
it might be best for us to acknowledge that the temptation to mone-
tize something free may always be there, not just because of moral
hazard, but also because corporate law might suggest such a result as
235
the default rule. Whether this default is normatively desirable may
236
be another question. The monetization of friendship is also a part
of the process of cyber commodification, and I turn to that discussion
next.
B. Social NetWORKing
Another example of the process of commodification can be seen
in the monetization of friendship. Currently valued at an estimated
237
$100 billion, Facebook can be both a valuable personal and business
238
networking application. Indeed, in both the for-profit and non-
234. Id. at 34–35.

235. See Dodge v. Ford Motor Co., 170 N.W. 668, 684 (Mich. 1919). According to the
court:
The difference between an incidental humanitarian expenditure of corporate
funds for the benefit of the employees . . . and a general purpose and plan to
benefit mankind at the expense of others, is obvious. . . . A business corporation
is organized and carried on primarily for the profit of stockholders.
Id.
236. See Judd Sneirson, Green is Good: Sustainability, Profitability, and a New Paradigm for
Corporate Governance, 94 IOWA L. REV. 987, 987 (2009) (noting that sustainable businesses
can thrive under current law); Lynn A. Stout, Why We Should Stop Teaching Dodge v. Ford, 3
VA. L. & BUS. REV. 163, 164 (2008) (noting that the idea of corporations existing only to
make profit for shareholders has been largely ignored other than by academics writing in
specialized journals); Lynn A. Stout, Bad and Not-So-Bad Arguments for Shareholder Primacy,
75 S. CAL. L. REV. 1189, 1189–90 (2002) (“[T]he debate over the social role of the corpo-
ration remains unresolved.”).
237. John Blackstone, Can Facebook Justify Its $100 Billion Valuation, CBS NEWS (May 17,
2012, 7:17 PM), http://www.cbsnews.com/2102-18563_162-57436724.html?tag=content
Main;contentBody.
238. Facebook has “over one billion monthly active users,” according to its estimates.
Key Facts, FACEBOOK, https://newsroom.fb.com/content/default.aspx?NewsAreaID=22
239
profit sectors, social networking is hailed as a major trend. Tradi-
tionally, friendship is seen as a gift freely given, separate and apart
240
from money. With the advent of social networking, however, the
monetization of friendship is increasingly possible and companies are
241
beginning to take advantage of this new business model. The
commodification of friendship may, however, have some unintended
consequences.
As Stephanie Rosenbloom reports in the New York Times,
“[i]magine a world in which we are assigned a number that indicates
242
how influential we are.” New businesses such as Klout, 243 PeerIn-
244 245
dex, and Twitter Grader datamine social media activities and as-
246
sign those who use them so-called influence scores. These scores
are based on online social networking activity, and increase depend-
ing on the number of followers and friends that a user has been able
247
to attract. As a user recommends a business to the user’s social net-
work friends and they follow suit, the user’s influence score rises.
Currently, those with high scores get preferential treatment from re-
tailers. According to the story, more than 2,500 marketers are now
(last visited Dec. 22, 2012); see also Stephanie Rosenbloom, On Facebook, Scholars Link up
with Data, N.Y. TIMES, Dec. 17, 2007, at A1.
239. See Nicholas Carr, Is the Internet Making Us Quick but Shallow?, CNN (June 7, 2010)
(reporting that, according to one recent estimate, the average American spends over eight
hours a day in front of a screen, whether that is a computer, cell phone, or television, with
teenagers receiving over 2,000 text messages per month).
240. See Ethan J. Leib, Friendship and the Law, 54 UCLA L. REV. 631, 642–47 (2007) (de-
scribing characteristics of friends; money conspicuously absent from this description).
241. See Sandy Carter, Opinion: Boost Business, Let Your Workers Socialize Online, CNN
OPINION (June 19, 2012), http://articles.cnn.com/2012-06-19/opinion/opinion_carter-
social-business_1_social-networking-social-business-business-value?_s=PM:OPINION (“En-
terprise social networking tools are fundamentally changing the processes through which
we do business.”).
242. Stephanie Rosenbloom, Got Twitter? You’ve Been Scored, N.Y. TIMES, June 25, 2011,
at SR8.
243. About Us, KLOUT, https://www.klout.com/corp/about (last visited Sept. 7, 2012).
244. About PeerIndex, PEERINDEX, http://www.peerindex.com/help/about (last visited
Sept. 7, 2012).
245. TWITTER GRADER, http://tweet.grader.com/ (last visited Sept. 7, 2012).
246. Rosenbloom, supra note 242.
247. Id.
using Klout’s data, including companies as diverse as Audi and the

248
Las Vegas Palms.
In a blog post analyzing the New York Times article, Professor Dan-
ielle Citron writes:
What’s troubling is the trend’s implications for society and
culture. It seems old school to say that people blog, make
friends, and engage in online chats to play, experiment, and
create culture. Now, they may feel pressured to do all of
these things as a matter of economic necessity. We may for-
go experimentation for product endorsements, and idle
chatter for better job prospects. This makes our children’s
choice to engage with social media seem like less of choice
249
than a carefully cultivated necessity.
As Professor Citron’s comment contemplates, and as the previous
Section describing crowdsourcing has noted, the divide between “vir-
tual work” and “virtual leisure” is a difficult one. So too is the gap be-
tween what is fun and pleasurable on Facebook and what provides a
monetary benefit. Using Facebook is free, but additional users help
expand the monetization as they represent an addition to the audi-
250
ence for potential advertising. Facebook merely provides the plat-
form. On its own, without someone’s friends on it as members as
well, Facebook would not provide a very satisfying experience. Ra-
ther, it is the user-generated content, which Facebook then owns, that
251
provides the true value of the website.
C. From Networking to Social Entrepreneurship

The idea that social ties are valuable and subject to monetization
certainly is one example of cyber commodification. But there are
other, more philanthropic ways of combining business, social net-
working, and technology, specifically in the form of a new model
called social entrepreneurship. As one author explains, “to qualify as
social entrepreneurship the activity must not only be entrepreneurial
248. Id.
249. Danielle Citron, Scoring Ourselves to Economic Death, CONCURRING OPINIONS (June
28, 2011, 6:24 PM), http://www.concurringopinions.com/archives/2011/06/scoring-
ourselves-to-economic-death.html.
250. See Somini Sengupta, So Much for Sharing his “Like,” N.Y. TIMES, June 1, 2012, at A1
(noting that marketers “leverag[e] one [Facebook] user’s stated preference . . . and
spread[] the word to that user’s friends”).
251. Id.
252
and social in nature, but also groundbreaking in scale and effect.”
Professor Celia Taylor notes that for a business model to qualify as so-
cial entrepreneurship, an “entity must engage in ordinary, viable
business enterprise. . . . [H]owever, a social business must be created
and run for the express purpose of pursuing specific, articulated so-
253
cial goals, rather than maximizing profit.” The concept is somewhat
related to corporate social responsibility (“CSR”), because social en-
trepreneurs like those who believe in CSR, aim to provide two interre-
254
lated goals, financial profit and social progress. As one author ex-
plains, however, they are different in the sense that social
entrepreneurship is, of necessity, built into the business, rather than
255
CSR, which may in some instances be “bolted on.” Without the so-
256
cial goal, the socially entrepreneurial business would not exist.
As social entrepreneurship is a fairly new concept, there are not
yet many concrete examples, and defining a social business can result
257
in some measure of interpretation and debate. One current busi-
ness model that seems to exemplify social entrepreneurship is micro-
finance. Grameen Bank founder Muhammad Yunus conceived of his
plan for microfinance based on his own observations of Bangladeshi
poverty and the provision of small personal loans from his own pock-
258
et. The idea was to assist some of the poorest people in the world by
providing seed money for small businesses that would also enrich
their communities by providing much-needed services. In such a way,
252. David E. Pozen, We Are All Entrepreneurs Now, 43 WAKE FOREST L. REV. 283, 297
(2008).
253. Celia R. Taylor, Berle and Social Business: A Consideration, 34 SEATTLE U. L. REV.
1501, 1505 (2011).
254. See, e.g., Janet E. Kerr, Sustainability Meets Profitability: The Convenient Truth of How
the Business Judgment Rule Protects a Board’s Decision to Engage in Social Entrepreneurship, 29
CARDOZO L. REV. 623, 634 (2007) (discussing legal aspects of social entrepreneurship); see
also What Is Social Entrepreneurship? The New Heroes, PBS (2005), http://www.pbs.org/
opb/thenewheroes/whatis/ (describing social entrepreneurship movement).
255. MARC J. LANE, SOCIAL ENTERPRISE EMPOWERING MISSION-DRIVEN ENTREPRENEURS
3 (2011).
256. Id. at 4.
257. S. Travis Certo & Toyah Miller, Social Entrepreneurship: Key Issues and Concepts, 51
BUS. HORIZONS 268 (2008).
258. Biography of Dr. Muhammad Yunus, GRAMEEN BANK (Oct. 2011),
http://www.grameen.com/index.php?option=com_content&task=view&id=329&&Itemid=
363.
259
a small amount of money could yield large social dividends. Today,
the Grameen Bank has grown with international philanthropic sup-
port, but “Grameencredit” maintains as its most distinctive feature
260
that the loans are based on trust, not collateral. Other programs
may help teach those living in poverty skills such as installing solar
panels, which can help that person financially, and also increase the
261
standard of living in impoverished communities.
Individuals will likely donate either their money or their time to
socially entrepreneurial ventures for purely philanthropic reasons
and, while these may be the motivations for corporate donations as
well, a business might have other goals in engaging in social entre-
preneurship. Investing and participating in social businesses can un-
cover new markets for the sale of goods and services. As one com-
mentator notes, “[s]ocial ventures can provide important access to
markets, which companies can then capitalize on with their profit-
262
maximizing operations.” Corporations can also benefit from engag-
ing in social business as a research opportunity to learn about the
people, the culture, and the resources in the particular geographic
263
area where a social enterprise is implemented.
In other words, social entrepreneurship is a composite of various
business models, with a lesser degree of commodification. Other
such “hybrid” business models are currently being developed, includ-
ing businesses that focus on sustainability and those that have regis-
259. What Is Microcredit?, GRAMEEN BANK (Oct. 2011), http://www.grameen-

info.org/index.php?option=com_content&task=view&id=28&Itemid=108.
260. Id. In contrast, Professor Kerr attributes social entrepreneurship to philanthropy
by wealthy technology investors. As she puts it:
[The] idea of social entrepreneurship was born in the early 1990s when “a hand-
ful of wealthy executives and investors, most of them connected in some way to
the budding tech boom, began to think about how philanthropy might work
[differently and] about how they could take what made them rich in business
and apply those tactics to charity.”
Kerr, supra note 254, at 624 (second alteration in original).
261. See, e.g., Grameen Families Organizations, GRAMEEN BANK (Aug. 23, 2011),
http://www.grameen-info.org/index.php?option=com_content&task=view&id=465&Item
id=547 (discussing a non-profit initative to provide renewable energy resources in rural
areas of Bangladesh).
262. Taylor, supra note 253, at 1507.
263. Id. at 1508.
264
tered as B Corporations. The desire for profit helps individuals
while also benefiting communities and leading to an increase in
knowledge and human capital. While many of the problems and dis-
putes surrounding commodification involve an incongruous clash of
expectations around profit, social entrepreneurship may provide a
template for navigating mixed or partially commodified business
models. Other ways of reconciling cyber commodification, however,
have not been so successful. And so from the topic of the process of
cyber commodification, we turn to the area of contests and disputes.
IV. CONTESTS AND DISPUTES

As we saw in the Introduction, differing expectations over the na-
ture of the Huffington Post—whether the blog was intended as an
online forum for the liberal community or a for-profit entity—created
a clash of values and ultimately led to a lawsuit. Whether it is the ex-
pectations of virtual workers, the question of whether predictions
about the future can be monetized, or how access to legal research
materials should be apportioned, the same questions of commodifica-
tion and conflicting expectations run throughout many of the exam-
ples provided. We have seen that commodification is not necessarily
bad—in virtual work, in fact, it may be a necessity to ensure that
workers receive a living wage. Disputes tend to occur, however, when
one group comes to a contractual relationship believing that they are
participating in a non-commodified website, when really the creators
of the website have monetization of the website in mind. In this Part,
I will examine some of the instances where there have been contests
and disputes over cyber commodification. I begin with an analysis of
the commodification of knowledge in prediction markets, then shift
to the market for legal research, and end with an analysis of “free” Wi-
Fi.
264. B Corporations, or “Benefit Corporations” are hybrids between for-profit and non-
profit companies. As a “B Corporation,” a company pledges to work toward other factors
other than profit, including environmental impact, positive treatment of workers, and
community relations. The company then files independently verified reports document-
ing its efforts to maintain B Corporation status. Michael R. Deskins, Benefit Corporation Leg-
islation, Version 1.0—A Breakthrough in Stakeholder Rights?, 15 LEWIS & CLARK L. REV. 1047
(2011); Antony Page & Robert A. Katz, The Role of Social Enterprise, 35 VT. L. REV. 59, 63
(2010); Danielle Douglas, Benefit Corporations Sign up, WASH. POST, Jan. 24, 2011, at A11.
A. Prediction Markets
Prediction markets, also known as information markets, or idea
futures, are a relatively new technology that allows many individuals to
express their opinions on the Internet in a market setting. 265 By let-
ting people put “their money where their mouth is,” prediction mar-
kets encourage thousands of people to join together in cyberspace to
266
predict future events. These markets are more than games of
chance or entertainment, as they draw on the unique information,
knowledge, and skills that individual participants bring with them to
the market. Prediction markets enable everyone to reap the benefit
of the participants’ collective wisdom and, in so doing, advance utili-
tarian goals, creating social welfare and monetary value that go be-
yond the amounts invested in the markets.
Prediction markets organize and aggregate individual knowledge
267
into a collective result. Each individual who is a trader in the in-
formation market acts to maximize his or her own reward. At the
same time, the organizers of the market collectivize the results and
harvest the valuable information that market participants have gener-
ated. In his popular book, The Wisdom of Crowds, James Surowiecki
explains numerous ways in which such collective knowledge can be
268
employed. Whether individuals are asked to estimate the location
269 270
of a sunken submarine, to guess the weight of an ox, or to help a
271
contestant on the game show Who Wants to Be a Millionaire, groups
provided accurate answers to questions that most individuals would
not have been able to answer on their own. In a prediction market,
265. ABRAMOWICZ, supra note 27, at 1–8.

266. Id. at 8.
267. See id. (noting that a prediction market, “can serve as a relatively simple technolo-
gy for aggregating individual probability assessments”).
268. JAMES SUROWIECKI, THE WISDOM OF CROWDS xiv, 3–4 (2004).
269. Id. at xx–xxi.
270. Id. at xi–xiii.
271. On the television program Who Wants to Be a Millionaire, contestants answer trivia
questions in multiple-choice format. Each contestant has several “lifelines” they can use,
including narrowing the options, telephoning a friend, and polling the audience. Alt-
hough the first two options are often helpful, the audience for the television program is
the most helpful of all, achieving a ninety-one percent success rate. Id. at 3–4.
individuals are given incentives to trade and contribute their

272
knowledge in a formalized setting.
The theory behind information markets is loosely related to the
semi-strong version of the efficient market hypothesis (“EMH”),
which holds that, in a properly functioning capital market, the prices
273
of securities will reflect all relevant publicly available information.
The price of a security on the market encodes a significant amount of
information, including beliefs about the efficacy of management, the
274
potential for future products, or market expansions. In other
words, most markets have a “price discovery” function, aggregating
275
information and predictions into the current price of that security.
In traditional capital markets, however, the information-seeking as-
pects are, to a certain degree, by-products of trading and raising capi-
tal. In contrast, this information-seeking is the sole reason for the in-
formation market’s existence.
At present, there are numerous information markets successfully
making predictions. Perhaps most notably, especially during past hot-
ly contested presidential elections, is the Iowa Electronic Markets
276
(“IEM”). The IEM, started in 1988 by academics at the University of
Iowa Business School, has been operating since that time to predict
277
the outcomes of various elections. An individual trader is limited to
a $500 investment, so although the financial stake of any one person
in the outcome is modest, each still has a financial incentive for mak-
272. Joshua Blackman et al., Fantasy Scotus: Crowdsourcing a Prediction Market for the Su-
preme Court, 10 NW. J. TECH & INTELL. PROP. 125, 130 (2012).
273. Eugene F. Fama, Efficient Capital Markets: A Review of Theory and Empirical Work, 25 J.
FIN. 383, 383 (1970); Ronald J. Gilson & Reinier H. Kraakman, The Mechanisms of Market
Efficiency, 70 VA. L. REV. 549, 552–53 (1984).
274. See Fama, supra note 273, at 383.
275. See generally Michael T. Chng, A Model of Price Discovery and Market Design: Theory and
Empirical Theory, 24 J. FUTURE MARKETS 1107, 1108–10 (2004) (describing price discovery
function performed by derivatives markets).
276. See, e.g., Jordan Erin, Iowa Electronic Markets Yield Near-Accurate Result, DES MOINES
REG., Nov. 10, 2004, at B5 (discussing the relative accuracy of online futures markets com-
pared to polls).
277. JOYCE BERG ET AL., RESULTS FROM A DOZEN YEARS OF ELECTION FUTURES MARKETS
RESEARCH 1 (2000) [hereinafter BERG ET AL., RESULTS], available at
http://www.biz.uiowa.edu/iem/archive/BFNR_2000.pdf. The IEM has also expanded
into predictions further afield from its base of political predictions. Id. at 7 n.10; see also
Jordan Erin, U of I Markets Tapped to Predict Flu Activity, DES MOINES REG., Nov. 22, 2004, at
B1 (discussing the use of IEM to predict flu activity).
278
ing a correct prediction. The IEM has predicted the outcomes of
elections more accurately than polls have, beating the polls seventy-six
279
percent of the time. This accuracy occurs despite the fact that re-
searchers at the University of Iowa have concluded that many of the
market participants exhibit a strong bias toward one candidate or
280
other. Apparently, the market is able to correct for these biases
281
through arbitrage; sensing an opportunity for profit, arbitrageurs
temper the ideological biases that some of the participants bring with
282
them when they make their initial investment in the IEM. Other
similar political prediction markets have appeared to predict the out-
283 284 285
come of elections in Austria, Germany, and Canada.
At the same time that prediction markets started to become more
common, the legal regime surrounding “real” money markets became
278. See Saul Levmore, Simply Efficient Markets and the Role of Regulation: Lessons from the
Iowa Electronic Markets and the Hollywood Stock Exchange, 28 J. CORP. L. 589, 589 (2003) (ex-
plaining that the IEM “is a controlled environment . . . which allows participants to invest
modest amounts of (real) money in certain ‘decision markets.’”).
279. JOYCE BERG, ET AL., ACCURACY AND FORECAST STANDARD ERROR OF PREDICTION
MARKETS 12–13, 33 tbl.3. (2003) [hereinafter BERG ET AL., ACCURACY], available at
http://www.biz.uiowa.edu/iem/archive/forecasting.pdf.
280. BERG ET AL., RESULTS, supra note 277, at 5. The average trader is younger, more
likely to be a white male, Republican, and of a higher socio-economic status than the aver-
age voter. BERG, ET AL., ACCURACY, supra note 279, at 10.
281. See, e.g., Donald C. Langevoort, Taming the Animal Spirits of the Stock Markets: A Be-
havioral Approach to Securities Regulation, 97 NW. U. L. REV. 135, 140 n.15 (2002). Professor
Langevoort defines arbitrage as the
process by which informed traders buy or sell in such a way as to eliminate any
mispricing caused by uninformed trading. For example, when a stock becomes
overvalued because uninformed traders are bidding it up, informed traders
would sell, hence moving the price back to its rational expectations equilibrium.
Id.
282. BERG ET AL., RESULTS, supra note 280, at 6.
283. AUSTRIAN POLITICAL STOCK MARKETS / AUSTRIAN ELECTRONIC MARKETS,
http://www.ebweb.at/apsm/ (last visited Feb. 7, 2013) (information markets predicting
outcomes of Austrian elections).
284. WAHLSTREET, http://www.wahlstreet.de (last visited Mar. 4, 2012) (information
market predicting outcomes of German elections).
285. ELECTION STOCK MARKET, http://esm.ubc.ca (last visited Mar. 4, 2012) (infor-
mation market predicting outcomes of Canadian elections).
286
more chilly. In 2006, an online gambling ban enacted in the Unit-
ed States had a devastating effect on the growth of publicly available
287
prediction markets. Although prediction markets are not the same
as betting in a horse race, the prediction market seeks information
above and beyond allocation between players, the law was written so
288
broadly that prediction markets were swept into its coverage. De-
spite some argument on the part of the author that prediction mar-
kets involved speech and expressive conduct, the gambling ban has
meant that the majority of publicly available prediction markets have
either been forced into using play money or have taken their opera-
289
tions overseas.
Ultimately, the regulatory ban on using money in prediction
markets effectively frustrated the development of an important in-
formation-gathering technology. The larger point, which I return to
in Part VI, is that commodification in and of itself is not necessarily
“bad” when it comes to a developing technology. In fact, commodifi-
cation can be quite beneficial at times, especially when it functions to
incentivize participants to reveal information, predictions, and
knowledge that could benefit others. While some commodification
situations cry out for more regulation, perhaps because of the desper-
ation of those engaged in them, or some idea of exploitation, those
elements could not be further from the type of useful predictive activ-
ity present in an information market. As such, regulation of commod-
ification should be fully analyzed before being imposed—especially
when the technology affected in this instance was not even truly the
286. Miriam A. Cherry, Morality and Markets: A Comment on Predicting Crime, 52 ARIZ. L.
REV. 73, 73–74 (2010).
287. In October 2006, Congress passed the Unlawful Internet Gambling Enforcement
Act of 2006, Security and Accountability for Every Port Act of 2006, Pub. L. No. 109–347,
120 Stat. 1884, 1952. See Cherry & Rogers, Prediction Markets, supra note 27, at 840–46 (ana-
lyzing impact of the Unlawful Internet Gaming Enforcement Act).
288. See Cherry & Rogers, Prediction Markets, supra note 27, at 835 (“[I]n the congres-
sional zeal to stamp out Internet gambling, information markets are in danger of being
trampled.”); see also Joshua Blackman et al., Cutting Access to InTrade Violates Americans’ Free
Speech Rights, HOUS. CHRON. (Dec. 7, 2012), available at http://www.chron.com/opinion/
outlook/article/Cutting-access-to-InTrade-violates-Americans-4100729.php (noting the
injustice in enforcement against prediction market headquartered in the United King-
dom).
289. See Emile Servan-Schreiber et al., Prediction Markets: Does Money Matter?, 14
ELECTRONIC MARKETS 243, 243 (2004) (conducting an experiment to determine whether
the accuracy of prediction markets are affected by play money versus real money).
subject of the regulation. With that lesson, I turn to see how access to
legal and government materials has been commodified, somewhat in
defiance of the notion that these materials should be publicly availa-
ble to all citizens. Recent developments are somewhat encouraging
that access to information may be more forthcoming—but this area is
also not without its dispute.
B. The Monetization of Legal Research and an Online Clearinghouse for

Legal Academia
In a common-law, precedent-based system such as the one we
have in the United States, the strength of a legal argument rests, in
large part, on how other courts have resolved the same or similar is-
290
sues. Such a system leads to consistency of results, and with con-
sistency comes stability. Access to justice, therefore, largely rests on
having access to earlier decided cases. Local governments, states, and
the federal government, however, have been slow to make materials
291
accessible, even though the justice system is supported by taxpayers.
While some law libraries feature open access to the public, others are
292
privately run. But access to a law library does not necessarily guar-
antee up-to-date legal research. Among print resources, it is difficult
and time-consuming to check to see if a particular case has been over-
293
ruled or otherwise called into question. Without any ability to use
computerized searching, and given the sheer volume of what one per-
son might need to sift through, the quest for cases in print format can
294
be difficult and time-consuming.
290. See, e.g., Brian G. Slocum, The Importance of Being Ambiguous: Substantive Canons,
Stare Decisis, and the Central Role of Ambiguity Determinations in the Administrative State, 69 MD.
L. REV. 791, 843 (2010) (“Traditionally, in statutory interpretation cases, the Court accords
‘special force’ to its precedents, unlike its decisions interpreting the Constitution where
stare decisis principles are not as strong.”).
291. See Michael W. Carroll, The Movement for Open Access Law, 10 LEWIS & CLARK L. REV.
741, 742–43 (2006) (discussing the history of the movement for open access law).
292. See id. at 743–44 (“In 1990, the Court cooperated with the Hermes project at Case
Western Reserve University to make the Court’s opinions freely available on the Inter-
net.”).
293. See id. at 742 (“[Y]ou do not have sufficient time to go to a law library in the hopes
that such an article might lie within.”).
294. See Carroll, supra note 291, at 742–43 (describing the difficulty of finding materials
before computerized access became available).
For years, for-profit companies have filled this gap in access to

online resources. Various CDs with legal information are available for
295
purchase from a variety of vendors. For the most part, however, the
need for computerized research has been filled by two for-profit
296 297
companies, Westlaw and Lexis. These two providers feature
searchable databases in which users can enter Boolean searches to
find applicable case law, statutes, law review articles, and newspaper
articles. Further, users of both these databases can perform an auto-
mated check to see what other cases have cited any case they are ex-
amining and to see, ultimately, if any particular case has been over-
298
ruled or otherwise had its authority called into question. These
commercialized databases were problematic for access, however, in
that they have historically charged a substantial sum for their ser-
299
vices. As more and more other services migrated online, Lexis and
Westlaw also moved to a world-wide-web model, which meant that
their users could access the service whether researching from work,
from the library, at home, or elsewhere. Still, the service remained
expensive and there were few competitors to challenge the market
300
domination. Paradoxically, access to materials written by judges
and legislators—all of which was meant to be open to the public—
became proprietary and commercialized simply because Westlaw and
301
Lexis allowed users to search effectively and conveniently.
295. See Cary Griffith, Two Legal-Specific Sites Are Meant to Make Life Easier, CORP. LEGAL
TIMES, June 1, 2001 (explaining that legal information is available in a variety of formats
including CDs).
296. WESTLAW, www.westlaw.com (last visited Mar. 4, 2012).
297. LEXISNEXIS, www.lexis.com (last visited Mar. 4, 2012).
298. See Jonathan Gaw, The Struggle to Innovate, STAR TRIB., April 13, 1998 (explaining
the process of cite checking using these online legal databases).
299. See Ashlee Vance, Legal Sites Plan Revamps as Rivals Undercut Price, N.Y. TIMES, Jan.
24, 2010, at B5 (discussing online legal database pricing); Ashby Jones, Can Bloomberg Com-
pete with Westlaw and LexisNexis? WALL ST. J. LAW BLOG (July 8, 2010),
http://blogs.wsj.com/law/2010/07/08/can-bloomberg-law-compete-with-westlaw-and-
lexisnexis/ (same).
300. See Daniel Fisher, Open-Sourcing the Law, FORBES, June 20, 2008 (“Big law firms will
continue to use Westlaw and Lexis for a long time.”).
301. See Vance, supra note 299 (noting that Westlaw and Lexis contain various types of
legal documents in addition to cases).
The same access problem is also present with academic legal re-
302
search. In the field of legal studies, law review articles and other le-
gal academic writing has historically been difficult for the public to
303
access freely. Most law schools publish a law review, and in some in-
stances schools also publish secondary journals specializing in a par-
ticular type of legal scholarship. Historically, law reviews were only
available to those that had a subscription, with the result that law li-
braries were one of the few places these materials were available. As
technology developed, Westlaw and Lexis placed law review articles
online. While legal academics and law students worked for free to
write and edit these articles, these online databases charged their sub-
scribers for access to these works. Not only are these databases ex-
pensive, but a year or more would often pass between the time au-
thors submitted their work to the law review and the time when the
304
article actually would be available on the electronic database.
More recently, many law reviews began making published articles
305
available for free on their websites. While this was a significant step
toward more accessibility, there is no centralized aggregating or in-
dexing service that allows for search across different law review web-
sites. Likewise, law journals only post the final versions of articles,
meaning that there continues to be a significant time lag between
when an article is given to the law review editors and when it becomes
306
available to the public.
Enter the Social Science Research Network (“SSRN”), which
307
touted its website as a free platform for housing academic research
302. See Carroll, supra note 291, at 748 (“Prices of scholarly journals outpaced costs,
however, and concerns about maintaining affordable access to the scholarly literature be-
gan to grow.”).
303. See Dan Hunter, Walled Gardens, 62 WASH. & LEE L. REV. 607, 613 (2005) (describ-
ing difficulty accessing materials and calling on law review publishing to become more
open access).
304. See James Grimmelmann, Why I No Longer Post to SSRN, THE LABORITORIUM (Nov.
28, 2006, 11:29 PM), http://laboratorium.net/archive/2006/11/28/why_i_no_longer_
post_to_ssrn [hereinafter Grimmelmann, Why I No Longer Post] (“The online services—
Lexis, Westlaw, and Hein[—]add their own lag time . . . .”).
305. See, e.g., MD. L. REV., http://digitalcommons.law.umaryland.edu/mlr/ (last visited
Dec. 22, 2012).
306. See Grimmelmann, Why I No Longer Post, supra note 304 (“Law reviews run on a de-
lay between acceptance and final publication that can easily exceed a year.”).
307. Home Page, SOC. SCI. RES. NETWORK, http://www.ssrn.com (last visited Mar. 4,
2012).
308
in the social sciences. The SSRN website is a platform that allows
309
registered users to post drafts of their articles to the Internet. Alt-
hough SSRN does not allow for content searching in the same way as
commercial database like Westlaw or Lexis, it has the advantage of
making an author’s work almost immediately available. The fact that
it is a free service is a huge assistance to those who are searching for
legal knowledge but do not have access to expensive databases. This
was such an advantage that many thought of SSRN as cutting edge—a
new and revolutionary “open access” way of thinking about legal and
310
social science scholarship. Legal academics were able to point oth-
ers to their work quickly and for free, expanding their readership and
311
the audience for their ideas.
Quickly, however, concerns among academics began to emerge.
Even though SSRN had acted in many ways like an open access non-
profit and was run by prominent academics, the website is actually
312
structured as a for-profit corporation. Many academics found out
about the for-profit nature of SSRN in surprising ways. First, there
was a false alarm that SSRN was going to charge for access to papers.
It was then learned that SSRN would not charge for Internet viewing
but would sell bound hard copies of papers to those who wanted such
313
a printout. Later, users of the website began to see advertisements
on the sides of the screen that were tied to the topics of the papers
that were being searched. Further, any article that was posted on
SSRN received an SSRN watermark down the middle of the page as a
308. See Hunter, supra note 303, at 617 (“SSRN is an organization that acts as a free
online repository for scholarly papers in the social sciences.”).
309. Id.
310. See id. (“‘Open access’ is the label for the principle that scholarly publishing
should be freely available to everyone, without charge, political censorship, or commercial
interference.”).
311. Id.
312. Matthew Bodie, An Interview with SSRN’s Gregg Gordon, PRAWFSBLAWG (June 15,
2006, 11:49 AM), http://prawfsblawg.blogs.com/prawfsblawg/2006/06/an_interview_wi.
html (questioning SSRN’s commitment to open access scholarship given the for-profit na-
ture of its business).
313. Gary D. Price, New from SSRN (Social Science Research Network): Option to Purchase
Bound Hard Copies of Selected Papers, INFODOCKET.COM (July 27, 2011, 12:34 PM),
http://infodocket.com/2011/07/27/new-from-ssrn-social-science-research-network-
option-to-purchase-bound-hard-copies-of-selected-papers/.
314
form of advertising. Through all of these efforts, SSRN has been
testing ways to commercialize its website but the professors who were
posting papers did not necessarily realize that their postings were in
the process of being commercialized by others.
As Professor James Grimmelmann noted, in describing the rea-
sons that he was choosing to post his research papers elsewhere:
[I]f you make your money by selling subscriptions, then it
makes institutional sense to place your own advertising on
the goods. Never mind what these decisions do to open ac-
cess to scholarship. That’s no longer the point. SSRN is a for-
profit corporation. It’s not yet (I think) a money-making
corporation, but its goal is to make money for its owners. It
has chosen to do so by providing useful open-access services
to scholars, but when push comes to shove, the bottom line
comes before the open access part. We don’t need to blame
SSRN or find fault with it. It’s just doing what comes natu-
rally—making the decision that [it has] supplied sufficient
open access to fit into a market niche and declaring that
315
good enough.
In other words, whether a website promotes an open access ethic
or is a commercialized venture is an important norm. When opera-
tors of platforms and users are not in agreement about what those
norms should be, disputes arise. While at first SSRN seemed to prom-
ise a revolution in open access that might make a very real difference
in the status quo of legal research, the question is whether it will ded-
icate itself to that mission in the future. Will the owners of SSRN suc-
cumb to moral hazard? SSRN may be poised for the same type of dis-
pute between owners and users that rocked the Huffington Post.
C. “Free” Wi-Fi
Another area of contest and dispute about monetization con-
cerns the provision of wireless fidelity (“Wi-Fi”). Wi-Fi is an almost
ubiquitous recent phenomenon, allowing Internet access in public
settings, such as coffee shops, restaurants, hotels, or airports. At the
end of the 1990s, small, independent, local businesses tended to pro-
vide free Internet service and chains and large businesses tended to
314. James Grimmelmann, SSRN Considered Harmful, THE SELECTED WORKS OF JAMES
GRIMMELMANN (Feb. 26, 2007), http://works.bepress.com/com/james_grimmelmann/
14/.
315. Grimmelmann, Why I No Longer Post, supra note 304.
charge customers for access. Within the last year or so, however, the
market has undergone a paradigm shift, with large chains now offer-
316
ing free Wi-Fi. Meanwhile, small businesses, perhaps because of the
challenging economic environment during the recession, have started
317
charging for their Wi-Fi services.
Wi-Fi, which had existed on some university campuses, started to
318
see more widespread adoption around the turn of the century.
Among one of the first commercial users of this new technology was
Starbucks, which announced at the beginning of 2001 that they would
begin rolling out Wi-Fi access across the United States in a partner-
319
ship with MobileStar. The results were incredible: By the end of the
year, over five hundred Starbucks had installed Wi-Fi and had high
320
transmission speeds. Access to the Starbucks network did not come
cheaply, however. Users could choose between $15.95 a month for
unlimited access, or use a pay-as-you-go plan which cost “about $3 for
321
fifteen minutes.” Only ten months after the announced partnership
with Starbucks, MobileStar went out of business, and at least one ana-
lyst speculated that the high cost of its pricing structure was to
322
blame. Quickly, other Wi-Fi providers moved into the market, and
some began offering free access—perhaps most noticeably a non-
323
profit which provided free Wi-Fi to areas in New York City.
By 2003, news accounts noted that Wi-Fi access in commercial
space had increased to include the now-defunct Borders Books and
316. Claire Cain Miller, Aiming at Rivals, Starbucks Will Offer Free Wi-Fi, N.Y. TIMES, June
15, 2010, at B1 [hereinafter Miller, Aiming at Rivals].
317. See, e.g., Coffee Houses Divided on Wi-Fi, CHI. TRIB., Mar. 5, 2012, at 1 (noting that
some small businesses are limiting Wi-Fi use to customers unless they make purchases after
certain lengths of time).
318. See Vikas Bajaj, Starbucks to Serve Faster Wireless Internet Connections, DALL. MORNING
NEWS, Jan. 4, 2001, at 1D (noting the anticipated expansion, in 2001, of Wi-Fi from univer-
sities and corporate campuses to broader audiences).
319. Id. MobileStar had been responsible for Wi-Fi access at 130 airports. Id.
320. Michelle Megna, Wireless at Starbucks, DAILY NEWS, Aug. 16, 2001, at 12.
321. Id.
322. Mark Kellner, MobileStar Killed by Its Own Greed, WASH. TIMES, Oct. 15, 2001, at D6.
323. See Michelle Megna, Wireless Areas Around the City Let You Access the Internet for Free,
DAILY NEWS (N.Y.), Oct. 21, 2001, at 6 (discussing the grassroots efforts of NYCwireless to
create free Wi-Fi zones).
324
McDonald’s, smaller retailers, and some locations in Canada. Pric-
ing structure was in a state of flux, likely due to the new players enter-
325
ing the market. While retailers like Starbucks still charged access
fees, McDonald’s and retailers like it provided an hour of free access
326
with the purchase of certain meals. Other providers also sought to
enter the market and provide Wi-Fi access to consumers for free, hop-
327
ing to monetize access to these users by selling advertisements. At
least some of these providers saw themselves in direct competition
328
with the older market participants, like Starbucks. The approach
seemed to be working and, by mid-2003, both the technology and fi-
nance sectors had doubts about the ability to capitalize Wi-Fi hotspots,
some cautioning that the industry would do well to remember the pit-
329
falls of the then recent dot-com crash.
It seemed the tipping point for free Wi-Fi access arrived in 2004.
News media continued to publish stories highlighting the increasing
proliferation of Wi-Fi networks, while simultaneously casting doubts
330
that models requiring payment for access were sustainable. The
media portrayed the payment model as facing stiff competition from
331 332
those providing free Wi-Fi, both intentionally and accidently.
Small businesses proclaimed they would use free Wi-Fi access as a loss-
leader to draw in business—sometimes evoking Starbucks directly in
324. David Akin, Do You Want Wi-Fi to Go with Those Fries?, GLOBE AND MAIL, Mar. 12,
2003, at B5.
325. Id.
326. Id.
327. Rob Wright, Wireless for Free—Solution Provider Invents an Innovative Marketing Ap-
proach, VARBUS., May 26, 2003, at 62.
328. Id.
329. Karen Lowry Miller, The Wi-Fi Bubble, NEWSWEEK, Aug. 3, 2003, at 36.
330. Matt Richtel, Where Entrepreneurs Go and the Internet is Free; Wi-Fi Providers Rethink
How to Make Money, N.Y. TIMES, June 7, 2004, at C1.
331. See Crayton Harrison, Wi-Fi for Free: You Get a Place to Surf; Shops Get a Loyal Clientele,
DALL. MORNING NEWS, Oct. 14, 2004, at 3D (contending that many Dallas area businesses
are providing free Wi-Fi as a loss leader).
332. See Jefferson Graham, Businesses Cast Wi-Fi Lures to Hook Customers, USA TODAY,
Sept. 13, 2004, at 5B (quoting a customer as saying: “If I have to use a Starbucks and pay, I
will. . . . But there are so many places now that are free, I don’t have to use the Starbucks
option very often”).
333
comparison. However, by 2005, a report by JiWire, Inc. seemed to
dampen those projections, noting that of the 34,544 Wi-Fi hotspots
listed, only ten percent were free, while Starbucks and McDonald’s
334
maintained about half of those hotspots.
The competition between price structures has not yet subsided
despite the frequent shifting in the market, both in terms of who the
providers are and what share of the market they captured. In 2008,
one of the largest providers of Wi-Fi access, AT&T, moved to allow
free unlimited access at any of its hotspots—provided the customer
335
purchased home high speed Internet first. Shortly thereafter,
AT&T partnered with Starbucks to service its Wi-Fi and offered two
336
free hours of access, then a first for Starbucks. This move did not
prevent small local coffee shops, large chains like Panera, and even
fast food restaurants like Schlotzky’s Deli from providing free Wi-Fi
337
access as an attempt to woo visitors from Starbucks. Interestingly,
soon after partnering with AT&T, Starbucks announced it would at-
tempt to fuse both price structures by granting limited free access to
338
customers who used a loyalty card at least once per month. USA To-
day noted that Starbucks rolled the program out during “the worst
slump in its history” and likely did so in an attempt to draw customers
339
and profits.
Anecdotal evidence suggests that independent coffee shop own-
ers, at least those in New York City, are starting to reverse course and
333. Lisa Lacy, Panera Bread Co. Hopes Customers Hang Around, ‘Chill Out’: Try the Wi-Fi
Web Access, NAT’L POST’S FINANCIAL POST & FP INVESTING, Dec. 3, 2004, at 3.
334. Karen Robinson-Jacobs, Take a Sip and Stay Awhile—While Surfing at High Speed: Res-
taurants and Cafes Lead the Pack in Offering Wi-Fi Connections, DALL. MORNING NEWS, Feb. 26,
2006, at 5D.
335. Elena Malykhina, AT&T’s Broadband Customers Get Unlimited Wi-Fi, INFO.WK., Jan.
23, 2008.
336. W. David Gardner, AT&T Pushes Wi-Fi Into Starbucks, INFO.WK., Feb. 11, 2008.
337. W. David Gardner, Wi-Fi Cafes; Easy to Find, but Free is Fading Away, INFO.WK., Apr.
29, 2008.
338. Susan Stellin, Free Wi-Fi, but Not for All, N.Y. TIMES, May 6, 2008, at C6.
339. Bruce Horovitz, Starbucks’ New Flavor: Free Wi-Fi; Chain Hopes to Perk up Traffic, USA
TODAY, June 3, 2008, at 9A. Interestingly, less than a month after the free AT&T Wi-Fi
program, T-Mobile, Starbucks’s former Wi-Fi provider, filed suit against Starbucks claiming
a breach of contract. T-Mobile Sues Starbucks over Hot Spots, N.Y. TIMES, June 7, 2008, at C2.
Three days later, the parties entered into a memorandum of understanding. W. David
Gardner, Starbucks And T-Mobile Settle Dispute over Wi-Fi, INFO.WK., June 12, 2008.
340
remove free Wi-Fi due to a tightening economy and increased costs.
Further evidence suggests that smaller owners do not see their cus-
tomer base becoming disillusioned with these developments, seem-
ingly believing that focusing on locality and small businesses will keep
341
their customers spending. It seems their theory will soon be put to
the test since, in 2010, Starbucks announced it would be removing all
pay mechanisms from its Wi-Fi access to allow unrestricted free ac-
342
cess.
Despite nearly ten years of technological development and con-
sumer demand, no clear consensus on Wi-Fi pricing structure exists.
While it would seem that customers would vastly prefer free Wi-Fi ra-
ther than have it tacked on as an extra charge of staying in a hotel
room, for example, consumers are apparently willing to pay for Wi-Fi
as a matter of convenience. Despite being a pioneer of commercial
Wi-Fi application, Starbucks resisted the movement to free Wi-Fi until
2010, when it suddenly reversed its policy. Meanwhile, small busi-
nesses seem to now be eschewing free Wi-Fi in the hopes of lowering
their costs, hoping that their supporters will stay loyal anyway. As to
how this impacts consumer expectations, consumers may not be sure
what the pricing structure will be and where they will receive free ac-
343
cess. From these lessons, we turn next to the larger doctrinal and
theoretical implications of cyber commodification.
V. THE IMPLICATIONS OF CYBER COMMODIFICATION

To this point, this Article has focused on elaborating various fac-
ets of the concept of cyber commodification: how cyber commodifica-
tion differs from other forms, the forces propelling cyber commodifi-
cation, the process by which it takes place, and the contests that have
arisen over this topic. In each of these Parts, I have provided exam-
ples of how different aspects of monetization or non-monetization—
predicting it, policing it, advocating for one situation or another—
have been fairly confounding. In this Part, I extrapolate several larger
340. David Usborne, US Coffee Shops Pull Plug on Laptop Lounging; Owners Fed up with Pa-
trons Buying a Coffee and Then Surfing Web for Hours, INDEP., Aug. 8, 2009, at 30.
341. Miller, Aiming at Rivals, supra note 316.
342. Id.
343. More recently, with the advent of smartphones, many rely on their phones to
check email and surf the web, independent of Wi-Fi. See Stan Freeman, Smartphone Users
Rise in Numbers, REPUBLICAN, Aug. 1, 2011, at A1 (claiming that one in four smartphone
users in America do most of their online browsing through their smartphones).
theoretical points that can be drawn from the examples that I have
spun out.
First, it is of note that the issues surrounding cyber commodifica-
tion are similar in some respects to the debate in intellectual property
(“IP”) law about creating proper incentives for creators by protecting
IP rights while at the same time allowing for experimentation, parody,
fair use, and open access. This central conflict is played out in many
of the debates over open access material versus the incentive to copy-
344
right. Similar argumentative tropes might be applicable in the con-
text of cyber commodification. The problem, however, is slightly dif-
ferent, as the value generated from various collaborative activities
comes from the wisdom of the crowd and the aggregation of talents
and opinions, rather than the work of an individual creator seeking
345
intellectual property protection for a personal invention.
Second, rather than looking at the issue in cold or impersonal
market rhetoric, it is important to recognize commodification as a
more human sociological issue. As noted by Viviana Zelizer in The So-
cial Meaning of Money, “[w]hile money does serve as a key rational tool
of the modern economic market, it also exists outside the sphere of
the market and is profoundly influenced by cultural and social struc-
346
tures.” In her book, Collateral Knowledge, Professor Annelise Riles
provides further anthropological insights into the social construction
347
of markets. Professor Riles argues persuasively that market compo-
nents, such as the notion of collateral, may function as substitutes for
personal knowledge of the counterparty to a transaction or elaborate
348
dispute resolution mechanisms. These insights are important to
understanding another point raised by Professor Zelizer:
Clearly, a link is missing in the traditional approach to
money. Impressed by the fungible, impersonal characteris-
344. See, e.g., Brett M. Frischmann, An Economic Theory of Infrastructure and Commons
Management, 89 MINN. L. REV. 917, 921 (2005) (discussing the difficulty that Americans
face in deciding between open access and restricted access with respect to various re-
sources); Michael J. Madison et al., Constructing Commons in the Cultural Environment, 95
CORNELL L. REV. 657, 666–67 (2010) (same).
345. See id. at 672 (suggesting that a collaborative environment within an intellectual
property framework necessitates the sharing and borrowing of ideas and resources from
one another).
346. VIVIANA A. ZELIZER, THE SOCIAL MEANING OF MONEY 18 (1994).
347. ANNELISE RILES, COLLATERAL KNOWLEDGE: LEGAL REASONING IN THE GLOBAL
FINANCIAL MARKETS 54–55 (2011).
348. Id.
tics of money, classic theorists emphasized its instrumental

rationality and apparently unlimited capacity to transform
products, relationships, and sometimes even emotions into
an abstract and objective numerical equivalent. But money
is neither culturally neutral nor socially anonymous. It may
well “corrupt” values and convert social ties into numbers,
but values and social relations reciprocally transmute money
349
by investing it with meaning and social patterns.
In other words, some of the cyber-exchanges I discuss in this Article
may help us make sense of the larger web of collaborative knowledge
that better communication and technology have made possible. With
these observations, I turn now to examine some thoughts about cyber
commodification, first on the doctrinal level of contract law, and then
on a broader macro level.
A. Doctrinal Implications of Cyber Commodification for Contract Law

As for some of the legal disputes about commodification raised
in earlier parts of the Article, we may want to look to well-known doc-
trines of contract law to help us resolve many of these questions. Ear-
lier, I discussed the fact that some services, such as mapping programs
and social networking, may allow users free access, but then dictate
particular terms of use through adhesive end-user license agreements
that no one reads. Also, there are situations, such as the Huffington
Post example, where clashing notions of whether the relationship was
or should be commodified have caused conflict. Some virtual activity
is obviously paid work, but other types blur the lines between work
and leisure. This permeable boundary leads to conflicting expecta-
tions and therefore disputes.
The traditional doctrines of contract law may be useful in analyz-
ing these varied situations. The ancient doctrine of consideration,
which I alluded to previously, may provide one mode of analysis. We
would ask here whether a bargained-for exchange exists between web-
350
sites and users. In many instances, a website might be providing us-
ers with valuable services but they may not receive anything directly in
return from the users. On the one hand, in a peer production model
in which the user does not pay to use the platform, it might at first
seem that there is no consideration and therefore no binding con-
tract. On the other hand, the website is gaining control of the con-
349. ZELIZER, supra note 346, at 18.

350. See RESTATEMENT (SECOND) OF CONTRACTS § 71 (1981) (“To constitute considera-
tion, a performance or a return promise must be bargained for.”).
tent that a person is posting, and that content is extremely valuable,

since it serves to build the value of the site and to attract other users.
The power of many of these websites comes from the crowd and the
ability to attract others to use the service. Further, if a website is gath-
ering information about its users so that it can have information for
advertisers or use that information in other ways, that action might
qualify as receiving something tangibly valuable for consideration
351
purposes under existing caselaw.
Other contractual rubrics may also be helpful for resolving dis-
putes. One such possibility would be the doctrine of good faith and
fair dealing; another would be unjust enrichment. While not strictly
contractual, unjust enrichment theories focus on a quantum meruit or
restitutionary measure of recovery when one party has unjustly en-
352
riched another and no contract is present. The doctrine recognizes
that, technically, assent is missing and contractual bargaining has
been defective but, nonetheless, unfairness has occurred and one par-
353
ty has been enriched. In other words, many cases in this area dis-
cuss the “hypothetical bargain” model, that is, what would the parties
have decided if they could turn back time and we could assume that
they behaved in a rational way toward each other? Even though the
Huffington Post bloggers lost this argument, one assumes that the
founders of the Huffington Post would have rather had the content
from the bloggers, even if they would retroactively have to consider
paying them, and that the bloggers may well have assented under
those circumstances.
351. See Dahl v. Hem Pharmaceuticals Corp., 7 F.3d 1399, 1404–05 (9th Cir. 1993)
(holding that information gathered in a clinical drug trial could constitute consideration
necessary to finding of a contractual relationship, in a case where a pharmaceutical com-
pany promised study participants free drug treatment in exchange for participation but
later reneged on its promise by arguing that provision of the medicine was only gratui-
tous).
352. See RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 1 cmt. B
(Discussion Draft 2000) (“Unjustified enrichment is enrichment that lacks an adequate
legal basis: it results from a transfer that the law treats as ineffective to work a conclusive
alteration in ownership rights.”); LORD GOFF OF CHIEVELEY & GARETH JONES, THE LAW OF
RESTITUTION 13 (Gareth Jones ed., 6th ed. 2007) (noting that unjust enrichment is a
“principle of justice which the law recognizes and gives effect to in a wide variety of
claims”).
353. Peter Linzer, Rough Justice: A Theory of Restitution and Reliance, Contracts and Torts,
2001 WIS. L. REV. 695, 764.
For the future, an important issue will be to determine who is

participating in crowdsourcing websites or other virtual work for fun
and in some unpaid capacity and those who are opting to work in the
market economy, perhaps in a lower-skilled capacity, and thus argua-
bly should receive the traditional legal protections for employment
activity. As an example of the first category, we might think about
unpaid editors and writers of Wikipedia who volunteer their time; and
as an example of the second, clickworkers working on a crowdsourc-
ing website performing low-skilled tasks. Under current law and prac-
tice, however, the distinction between these two categories has been
an uncertain and difficult determination. In fact, in earlier work I
354
discussed this matter in some depth.
At the moment, there is little regulation and instead this area has
been left to the realm of voluntary, contractual private ordering. As-
suming that contract and voluntary agreements will remain of primary
importance in determining the commodified or non-commodified
nature of these relationships, the operative question would be what
the best default rule would be: payment in the market or the assump-
tion that these are free activities performed on a volunteer basis. If
the majority of users participate on a website just for fun, that might
weigh in favor of the default rule being no regulation, with an opt-in
to the protections of labor and employment law. In contrast, one
could argue that the default rule should be protection and then users
must deliberately and unequivocally state they are volunteers,
acknowledge that they will not receive monetary payment, and clearly
opt out. As I have stated in previous work, I believe that the later ap-
proach—requiring an extremely clear opt out—is the better ap-
proach. Considering the differential bargaining power often at issue
in employment situations—which is why certain legal protections ex-
ist—it may make more sense to create a default rule of regulation,
with clear assent needed in order to disclaim the protections.
How to implement such consent, however, presents its own set of
problems. Many would suggest that clickwrap agreements would pro-
vide users with the information they need in order to know what kind
of relationship they are getting into. All Internet users are fairly fa-
miliar with such clickwrap agreements, as users must necessarily see
and agree to clickwraps in order to use many websites, receive free
354. See Miriam A. Cherry, Working for (Virtually) Minimum Wage: Applying the Fair Labor
Standards Act in Cyberspace, 60 ALA. L. REV. 1077, 1105–10 (2009). My analysis of the con-
tractual issues involved has remained constant, and therefore I have adapted my earlier
reasoning to the realm of cyber commodification.
355
downloads, or order products. Clickwraps, however, have serious
356
problems and have been subject to a withering critique. Commen-
tators have noted that clickwraps incorporate some of the worst char-
357
acteristics of adhesion contracts, allowing for “acceptance” or “re-
358
jection” of the terms as a whole only on a take it or leave it basis.
Many of the boilerplate terms contained in online agreements are of-
359
ten harsh, some so much so that they may be unconscionable.
There thus is a real concern that these types of “agreements” may not
embody a worker’s true assent, or represent any kind of an informed
decision about the terms. This may not be the type of “assent” or
“agreement” that is needed in order to inform workers of their rights,
especially since workers tend not to understand many of the basic
rights and responsibilities governing the employment relationship in
360
any case.
In the employment realm, contractual ordering is somewhat dif-
ficult in part because the minimum wage law, the Fair Labor Stand-
361
ards Act (“FLSA”), is an immutable default rule—normally it cannot
be waived, by clickwrap or other contract. After all, if employers and
employees could simply opt out of the minimum wage, the law would
cease to have any meaning. Companies might choose to exploit such
an exemption opportunistically, not just to apply to those who partic-
ipate as volunteers and for entertainment.
Given the problematic nature of private ordering by contract,
might some other solution be found? As I have argued elsewhere,
355. See, e.g., Robert A. Hillman & Jeffrey J. Rachlinski, Standard-Form Contracting in the
Electronic Age, 77 N.Y.U. L. REV. 429 (2002).
356. Id. at 440–41.
357. Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV.
1173 (1983) (providing a summary of adhesion contracts concepts).
358. Id. at 1174.
359. See, e.g., Shmeul I. Becher & Tal Z. Zarsky, E-Contract Doctrine 2.0: Standard Form
Contracting in the Age of Online User Participation, 14 MICH. TELECOMM. TECH. L. REV. 303
(2008); Mark A. Lemley, Terms of Use, 91 MINN. L. REV. 459 (2006); Robert L. Oakley, Fair-
ness in Electronic Contracting: Minimum Standards for Non-Negotiated Contracts, 42 HOUS. L.
REV. 1041 (2005); Juliet M. Moringiello & William L. Reynolds, From Lord Coke to Internet
Privacy: The Past, Present, and Future of the Law of Electronic Contracting, 72 MD. L. REV. 452,
468–69 (2013).
360. Pauline T. Kim, Bargaining with Imperfect Information: A Study of Worker Perceptions of
Legal Protection in an At-Will World, 83 CORNELL L. REV. 105 (1997).
361. Fair Labor Standards Act of 1938, ch. 676, 52 Stat. 1060 (codified as amended at
29 U.S.C. §§ 201–19 (2006)).
there are several factors that should be given a prominent role in any
determination of whether online activity is “work” and subject to regu-
lation under FLSA. One factor to consider would be the question of
whether the activity is considered paid work in other context. If that
is the case, perhaps commodification is an indication that the market
activity that goes on there should properly be classified as paid work.
Another factor might be whether the work is “de-skilled” work. In
such situations, the potential for exploitation might be higher, and
thus the protections of the FLSA might be more important.
Finally, since the Department of Labor may choose to regulate
this activity in the future, it might make sense for private employers
that are experimenting with this type of work—and the websites that
facilitate them—to attempt a voluntary effort in order to frame the
dialogue if in fact an extension of the FLSA is proposed, which seems
likely. One such response might be to construct a code of “best prac-
tices” for cyberwork that attempts to draw some of the lines between
work and entertainment activity, and set out some guidelines that
would prevent the more extreme forms of exploitation. These “best
practices” would be influential if they formed a core set of expecta-
tions to which both workers and employers could adhere. If such a
voluntary response is present, the line-drawing exercise necessitated
by the FLSA may not be as difficult as it might first appear.
B. Theoretical Implications of Cyber Commodification

From these practical solutions, I now turn to a more theoretical
discussion of cyber commodification. It is important to note that
cyber commodification has become a controversial area because
group knowledge has particular characteristics that make it unique.
After all, what do crowdsourcing, crowdfunding, prediction markets,
and Wikipedia all have in common? They all rely on, indeed could
not exist without, the contributions of a large group of members.
That is what is so interesting about these new businesses, the ones that
harness the Internet successfully in a multitude of ways. What is
common between crowdsourcing and prediction markets is that both
acknowledge that large groups, when properly harnessed, can result
362
in better outcomes than the efforts of individuals.
362. See supra Parts II.B.1, IV.A (discussing crowdsourcing and prediction markets); see
also CASS SUNSTEIN, INFOTOPIA: HOW MANY MINDS PRODUCE KNOWLEDGE 3–5 (2006) (dis-
cussing uses of crowdsourcing and prediction markets in public institutions and noting
that “[c]ollaborative projects, often involving numerous strangers, are growing in both
scale and quality, to the benefit of millions of people”).
These various websites, programs, and crowdsourcing tools are

363
only valuable because of their scale. For example, Facebook is at its
most useful when a person attains a critical mass of friends or ac-
quaintances who are also using it. If a person has zero Facebook
friends, being on Facebook will not be enjoyable, since there will be
no one to read or “like” any posts. In other words, the intrinsic value
of the Facebook site to the individual person depends on how many
364
others in their social circle are also using it. And the connections—
the fun part of being on Facebook—also generate value for the com-
pany itself, which can brag to advertisers about the number of con-
365
nections generated and the captive eyeballs on its platform. Like
Facebook, so too Wikipedia, craigslist, Amazon’s Mechanical Turk,
and countless other websites that are either commercial, or not, de-
pend on vast numbers of eyeballs and users. In other words, the sites
depend on harnessing the collective knowledge, skills, and time of
366
their user base.
In examining these questions, I am largely interested in two legal
theorists, Professors Margaret Jane Radin and Yochai Benkler, whose
works inform and provide structure for the present context. Professor
Radin introduced and developed the theory of commodification in
legal studies in a series of pathbreaking works concerning the com-
367
modification of the body and sexuality. For some years, Professor
Benkler has been writing about open source computing and how
networked peer production would seem to provide a “third way” of
non-commodified production, apart from either markets or the firm,
368
to borrow the terminology from Coase’s theory of the firm.
363. See Teppo Felin & Todd R. Zenjer, Information Aggregation, Matching and Radical
Market-Hierarchy Hybrids: Implications for the Theory of the Firm, 9 STRATEGIC ORG. 163, 163–
64, 166 (2011) (noting that both crowdsourcing websites and prediction markets harness
the power of the crowd and also perform information aggregating and matching func-
tions).
364. See Hetcher, supra note 49, at 995 (“[T]he more people who are on Facebook, the
more it is in one’s interest to be on Facebook.”).
365. See, e.g., John Cassidy, Me Media, NEW YORKER, May 15, 2006, at 50 (describing the
lucrative advertising opportunities on Facebook and the idea that the more views a site
has, the greater the revenue it will generate).
366. See Jenny Preece, Sociability and Usability in Online Communities: Determining and
Measuring Success, 20 BEHAV. & TECH. 347, 347–48, 51 (2001) (discussing how the number
of participants and their contributions determine the success of online communities).
367. See supra note 51 (listing several of Professor Radin’s works).
368. See, e.g., Benkler, supra note 199, at 372 (discussing Coase’s theory of the firm).
In Contested Commodities, Professor Radin is concerned with how

commodification interacts and perhaps subtracts from what she terms
369
the “conception of personhood.” Aside from the theoretical con-
cept of commodification, which she explores in depth, she is also
concerned with subordination, objectification, and the inequitable
370
distribution of wealth within society. In fact, one question she raises
is whether these other ills are the real concern, not commodification
371
itself. Professor Radin does not espouse either one of these duali-
ties precisely and she mostly concentrates on commodification as it
372
interacts with the sale of the body and related elements. As such,
she focuses not so much on the dichotomy between commodification
and non-commodification but with the concept of human flourish-
373
ing.
Although Professor Radin declares that she does not believe in
setting up a binary opposition between “universal commodification”
and complete “non-commodification,” she hints at various points
374
throughout the book that commodification is dangerous. Although
Professor Radin formally claims that she believes in discourse plural-
ism, the more examples she provides, the more the reader becomes
convinced that commodification is a problem. In her view, we are on
a slippery slope of commodification that will chip away at our dignity,
375
and ultimately our personhood as we slip our way down the slope.
She holds this view despite the fact that much of “woman’s work” has
been undervalued precisely because it is outside the realm of the
marketplace.
376
In his book, The Wealth of Networks, and an accompanying law
377
review article, Professor Yochai Benkler focuses on the potential for
378
collaborative work in cyberspace. In both pieces, Professor Benkler
369. MARGARET JANE RADIN, CONTESTED COMMODITIES 154–55 (1996).

370. Id. at 154–59.
371. Id. at 155.
372. Id. at 131–36.
373. Id. at 79–80.
374. See, e.g., id. at 79–80 (noting that some commentators have “maintained that
commodification is inimical to the flourishing of human beings”); id. at 94 (“If commodi-
fication is bad in itself, it is bad for everything.”).
375. Id. at 95–96.
376. BENKLER, supra note 47.
377. Benkler, supra note 199, at 372–76.
378. See, e.g. BENKLER, supra note 47, at 9. Professor Benkler argues:
regales the reader with rich descriptions of the Linux operating sys-
379
tem, Wikipedia, Project Gutenberg, and the NASA Mars project. In
all of these online endeavors, users coordinate their efforts through
collaboration by using small segments of their time, talents, or com-
puting power. In Benkler’s vision, this “peer production” model pre-
sents another option for economic coordination (in addition to
Coase’s description of markets and firms) when certain conditions are
380
met. Throughout the book and the law review article, it is no secret
that Professor Benkler strongly advocates for the importance of the
peer production model. According to Professor Benkler, money does
not (and moreover should not) play into the motivations of the par-
381
ticipants. Rather, he claims, users are motivated by intellectual joy,
pride, excellence, giving back to the community, and other similar
382
non-monetary interests. While Professor Benkler mostly assumes
that the users’ interests and those of the creators match, he does oc-
casionally allude to the idea of moral hazard.
In Professor Benkler’s view, peer production stands the best
chance of succeeding when the model is able to take into account the
383
differing interests, talents, and capabilities of the users. He suggests
that projects allowing users to harness their talents and match them
with available tasks will be the most efficient for the peer production
As collaboration among far-flung individuals becomes more common, the idea

of doing things that require cooperation with others becomes much more at-
tainable, and the range of projects individuals can choose as their own therefore
qualitatively increases. The very fluidity and low commitment required of any
given cooperative relationship increases the range and diversity of cooperative
relations people can enter, and therefore of collaborative projects they can con-
ceive of as open to them.
Id.
379. Benkler, supra note 199, at 371–72, 384, 386, 398.
380. See id. at 404–06 (discussing peer production as an “important mode of infor-
mation production”).
381. See id. at 372 (“But the critical mass of participation in projects cannot be ex-
plained by the direct presence of a command, a price, or even a future monetary re-
turn . . . .”).
382. See, e.g., id. at 392–93 (discussing the Open Directory Project, and noting that vol-
unteers “manage the directory out of the joy of doing so or for other internal or external
motivations”).
383. See id. at 379 (noting that peer production will thrive where, among other things,
“production [is] incremental and asynchronous, pooling the efforts of different people,
with different capabilities, who are available at different times”).
384
model. Professor Benkler identifies two additional criteria for suc-
cessful peer production: granularity, which will allow for only a small
task and a small commitment of time or effort and, second, modulari-
ty, which allows for those discrete elements to be successfully broken
385
down and then later integrated into the larger project. While Pro-
fessors Radin and Benkler approach the problem quite differently—
Radin from a feminist perspective, Benkler from an open source ad-
vocacy perspective—both seem to view commodification with suspi-
cion.
No theory to date explains why harnessing collective knowledge
in cyberspace results in the presence of Wikipedia and, simultaneous-
ly, prediction markets. Both do aggregate knowledge, but one is ex-
plicitly free, relying solely on the goodwill of volunteer editors and a
few donated dollars, while prediction markets are built around the
central theme that money is the only element that matters. How do
we reconcile these conflicting models? How do we recognize that
bloggers may view their contributions differently in varying situations,
and that they are unhappy when their expectations about monetiza-
tion are not met by the blog’s operators?
Overall, Professors Radin and Benkler have made outstanding
contributions to commodification theory but at the same time seem
skeptical of monetizing information on the Internet. While I under-
stand their suspicion, the world of cyber commodification is so diverse
that a rule of absolute non-commodification would do at least some of
these new forms of collaboration a disservice. For example, payment
is important in virtual work to prevent exploitation of workers, espe-
cially disenfranchised workers in developing countries. A norm of
non-commodification does not take the rather unique status of these
workers into account. Money also may help us attain more accurate
results in prediction markets.
What is it that markets do that perhaps other forms are not able
to do? Markets, after all, perform an allocation as well as a coordina-
tion function. A market orders and organizes what otherwise would
be random activity. Money might incentivize people to reveal their
knowledge. Further, a living wage for work performed is important.
Contrary to what Professors Radin and Benkler seem to advocate,
money itself is not the problem in some of the scenarios set out in this
384. See id. at 376 (discussing the importance of efficiency of self-identifying tasks in
peer production).
385. Id. at 378–79.
386
Article. In fact, the lack of money for work on the Internet—
especially when it concerns the meager wages paid to workers in de-
veloping countries in a crowdsourcing scheme—can smack more of
exploitation than free collaboration.
One way to look at this is as a coordination problem. As we know
from Coase’s theory of the firm, both markets and firms are ways of
387
efficiently organizing economic activity. So what motivates people
in a non-commodified crowdsourcing situation? The question of mo-
tivation is far more complicated than homos economius would have us
388
believe. There is a complicated series of motivations that drive any
one person, including a mixture of altruism and self-interest. Fur-
ther, while certain tasks might be freely volunteered, other tasks are
simply too boring, mundane, annoying, or time-intensive that people
389
will not do them unless they are paid.
Despite the warnings from Professors Benkler and Radin about
commodification, there are certain areas where we should not be
worried about monetization, but instead worried about non-
monetization. For example, failing to pay workers minimum wage
online should not be praised as a new method of peer production—it
should be viewed skeptically, in some instances even condemned in
the event that it leads to exploitation. Those who change the expec-
tations of users halfway through a relationship due to moral hazard
and the lure of money should not have their own expectations re-
spected. At the same time, participants in social entrepreneurship or
a prediction market will likely benefit from having monetary ex-
change as part of their freedom of expression. There is no reason to
fear these forms of exchanges just because they involve money. Re-
turning to Professor Zelizer’s point, money may influence society, but
390
society influences money as well. Perhaps through efforts such as
social entrepreneurship, we can change the way we think about the
very concept of monetization.
386. See generally Yochai Benkler & Helen Nissenbaum, Commons-Based Peer Production
and Virtue, 14 J. POL. PHIL. 394 (2006) (arguing that unpaid peer production is morally
virtuous).
387. See Benkler, supra note 199, at 372 (discussing Coase’s theory of the firm).
388. RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE 6–7 (2008); DANIEL KAHNEMAN &
AMOS TVERSKY, CHOICES, VALUES, AND FRAMES (2000).
389. See Arlene Kaplan Daniels, Invisible Work, 34 SOC. PROBS. 403, 403–11 (1987) (dis-
cussing society’s conceptions of “work” and what “work” should be compensated).
390. See supra note 349 and accompanying text.
Therefore, I would suggest that, unlike the Delaware Chancery

Court’s conclusion, we do not have to choose between the wholly
monetized model of eBay and the public-service world of craigslist.
Instead of imposing choices, dichotomies, and artificial categories to
these new forms of collaboration and business organization, we
should allow entrepreneurs, social or otherwise, the freedom to ex-
periment, explore, and choose different models. This freedom
means, however, that websites should be free not only to implement a
philanthropic or social business model, but also to use money to mo-
tivate their participants, such as in virtual work or within prediction
markets. But, when doing so, we must keep in mind Professor Radin’s
particular admonition: will any particular activity in cyberspace add in
391
total to the sum of human flourishing?
VI. CONCLUSION
Ultimately, our journey across the Internet shows us that cyber-
space is in a state of incomplete commodification. The current land-
scape of cyberspace contains multiple regimes of commodified, non-
commodified, and mixed-use settings. This mixture—which in many
instances defies logic or common sense—tells us that there is no one
natural “state of nature” for the Internet. If anything, the develop-
ment of certain intermediate business models, such as social entre-
preneurship, can potentially reframe the ways that we look at the na-
ture of markets and the theory of the firm.
391. RADIN, supra note 369, at 79–80.

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Maryland Law Review

Volume 72 | Issue 2 Article 2

Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr

Copyright © 2013 by Miriam A. Cherry.

election, many Huffington Post bloggers wrote accounts critical of then-

mental questions remain as productive collaborative uses of the In-

37. See infra Part IV.

43. See supra Part II.

cal of marketization of the Internet, that skepticism is, in my view,

accelerate various types of commodification by lowering transaction costs and bringing

market terms. From this more historical and theoretical background,

I. DIFFERENTIATING CYBER COMMODIFICATION

55. Alvin E. Roth, Repugnance as a Constraint on Markets, 21 J. ECON. PERSP. 3, 40 (2007)

ment for organs is forbidden in the United States but is permitted in

A. Existing Legal Framework for Regulation of New Markets

Constitutional provisions or criminal statutes can put certain ac-

federal anti-gambling laws have recently been strengthened as a reac-

B. Scholarly Analysis of Commodification

78. Among practitioners, the doctrine of consideration would generally be considered

90. Id. at 124.

II. FORCES PROPELLING CYBER COMMODIFICATION

104. Social Identity Theory of Deindividuation is particularly relevant in the Internet

observations regarding anonymity and Internet behavior exist. For

112. Williams, On-Line Anonymity, supra note 103, at 696.

was perhaps unsavory, it was difficult to make that purchase anony-

1. The Market for Adultery

websites have created mobile applications or “apps” to allow users to

2. Baby Names and Branding Rights

Court treated the consideration question as settled, citing Wolford v.

141. 32 N.E. 87 (Ind. App. 1892).

Many of these well-established precedential cases, however, in-

B. Reduction of Geographic Barriers and Other Transaction Costs

154. Cherry, Virtual Work, supra note 30, at 483–84.

cause the money in virtual worlds is convertible to real world money,

181. Zittrain, supra note 165.

Another model that uses these relative differences in wages is to have

of workers in developing countries); Complaint, MDY Indus., L.L.C. v. Blizzard Entm’t,

commodification lead to the exploitation of virtual workers? I return

musicians produce their work or helping charitable organizations get

III. THE PROCESS OF CYBER COMMODIFICATION

A. Free or Not to Be?: The Clash between eBay and Craigslist

218. eBay v. Newmark, 16 A.3d 1, 8 (Del. Ch. 2010).

revenues, profits, and market share. . . . It has a large man-

225. Id. at 7–9.

of the corporation for the benefit of its stockholders. The

230. Id. at 34.

234. Id. at 34–35.

using Klout’s data, including companies as diverse as Audi and the

C. From Networking to Social Entrepreneurship

259. What Is Microcredit?, GRAMEEN BANK (Oct. 2011), http://www.grameen-

IV. CONTESTS AND DISPUTES

265. ABRAMOWICZ, supra note 27, at 1–8.

individuals are given incentives to trade and contribute their

B. The Monetization of Legal Research and an Online Clearinghouse for

For years, for-profit companies have filled this gap in access to

V. THE IMPLICATIONS OF CYBER COMMODIFICATION

tics of money, classic theorists emphasized its instrumental

A. Doctrinal Implications of Cyber Commodification for Contract Law

349. ZELIZER, supra note 346, at 18.

tent that a person is posting, and that content is extremely valuable,

For the future, an important issue will be to determine who is

B. Theoretical Implications of Cyber Commodification

These various websites, programs, and crowdsourcing tools are

In Contested Commodities, Professor Radin is concerned with how